According to the Indy Star, USA Gymnastics kept complaint files on individuals. In at least two instances, those individuals had filed police reports and were arrested and tried. This happened in 2002 and 2003.
Jack Swarbrick was an active General Counsel as of 2004, cited for working with the USOC in a separate link below.
Wouldn't this support the idea that Swarbrick was aware of complaints about abuse of gymnasts and did not take appropriate action on those complaints? It also raises the question about USA Gymnastics' policy to ignore all reports not made directly by gymnasts. Who formulated that policy and vetted it? I cannot imagine the General Counsel did not sign off on that policy. And the timing of that discussion would certainly indicate it happened on Jack's watch.
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(from IndyStar)
USA Gymnastics had compiled a thick file of complaints about coach Mark Schiefelbein years before he was charged with molesting a Tennessee girl when she was 10 years old. The girl’s family contacted police in 2002. Schiefelbein penetrated her with his finger multiple times, according to police records. He also videotaped her exposed vagina for what he called “training purposes, so he would know where not to touch her.” The girl’s family was shocked to discover the history of complaints against Schiefelbein, which came to light only after prosecutors subpoenaed records from USA Gymnastics. A jury in Williamson County, Tennessee, convicted him in 2003 of seven counts of aggravated sexual battery and one count of aggravated sexual exploitation of a minor. He is serving a 36-year prison sentence.
USA Gymnastics had a sexual misconduct complaint file on James Bell at least five years before his 2003 arrest for molesting three young gymnasts in Rhode Island. It’s unclear what allegations were contained in that file. But IndyStar found prior police reports on Bell in Oregon. In 1990, an underage gymnast told police that Bell had climbed on top of her and told her he wanted to take off her pants. In 1991, a 10-year-old gymnast said Bell stuck his hand inside her shirt and pinched her breast. Bell wasn't charged and continued coaching until his former employer reported him to police in Middletown, Rhode Island. He went on the run in 2004 and wasn’t rearrested until last year. Bell pleaded guilty in December in Newport County, Rhode Island, to three counts of child molestation and is serving eight years in prison.
Many heads should be rolling at this point.
the board and senior administration hasn’t tendered their resignations on the spot. To have to be threatened to do so speaks volumes.
decades, on the U.S. Olympic Committee and USA Gymnastics’ watch,” Ernst said in a statement. “A Select Committee dedicating its complete attention to USOC’s and USA Gymnastics’ role in this tragedy is imperative to holding the appropriate parties accountable and working to ensure this doesn’t happen again.”
this little bit would scare me- "Also within that 12 months, USA Gymnastics must cooperate with the independent investigation into whether anyone knew about athlete complaints of Nassar’s abuse and didn’t report them and the systemic failures that contributed with his ability to go unchecked for so long."
with potential coaching candidates going forward.
No need to worry.
It's not clear to me when allegations about Nassar were first made directly to USAG. But I don't see much excuse for them not conducting a thorough investigation after the police became involved.
re-linked post substantiates that Swarbrick was certainly not a figurehead General Counsel; he was quite actively involved in policy formulation and coordinated same with the USOC in 2004 over the Paul Hamm medal controversy.
question, which I didn't see covered in your summary: I read something(maybe here) suggesting that Swarbrick may have been counsel in a settlement that was challenged by a lawsuit filed very recently (I think sometime in 2017) by someone claiming that the earlier settlement was fraudulent, etc. And then I read something that only 4 people knew of that settlement. Does that ring a bell with people who have followed this more closely? Can anyone fill me in on these details? As with many others who have posted here, I make no accusations. I'm trying to determine as many facts as possible in order to reach my own conclusions.
Last point - am I correct in inferring from some of these posts that we're talking (among other things) about the crime/fraud exception to the attorney client privilege?
Privilege does not cover the questions "do you know Mr. Smith?" or "what was the scope of your retention by Mr. Smith?"
Swarbrick invoked privilege for both of those questions in his 2012 deposition.
Crime/fraud definitely is in play. Complaints about Nasser started in the 90s. It got to where any reasonable person who knew of the complaints would conclude that every female he "treated" was at risk. When did it become failure to report foreseeable harm to a human being.
8:28 am ET today --
Sally Jenkins
Sally Jenkins
@sallyjenx
Longtime counsel for #USAGymnastics? Notre Dame athletic director Jack Swarbrick.
I love IABT@AmThruster's tweet.
"Ahem...Director of Athletics."
anything in any newspaper, including the Indy Star, etc. about this matter.
What's up with that?
obviously is not protected by attorney-client privilege, in case anyone was wondering. That invocation of privilege, and Swarbrick's alleged failures to recall, are embarrassing. Swarbrick's deletion of his past representation of USAG from his ND bio is suspicious, to put it mildly.
The compromise Swarbrick proposed in 1999 -- that USAG forego its ability to suspend individuals charged with a crime, but retain the ability to deny the privilege of membership upon a felony conviction -- strikes me as woefully inadequate. Of course, the USOC's rejection of that compromise and insistence on a hearing "in all situations" is horrifyingly worse. Under basic principles of due process, the filing of felony charges -- particularly for child abuse-related incidents -- should be sufficient to justify a suspension, at least after a brief pre-deprivation hearing (not the full hearing the USOC appeared to require). It should go without saying that a felony conviction is plainly sufficient for summary termination of membership, with no need for any further hearing. (For example, the California State Bar automatically disbars attorneys upon criminal conviction involving moral turpitude.)
Thanks for this very helpful summary.
And I've never had to be questioned by a lawyer in any matter of legal or civil consequence. Is this standard practice if you really don't want to answer a question, to simply say "I can't recall?" Sessions seemed to pull it off in some of his committee hearings (despite howls from Dems). Will you get away with that approach, as long as no one can pin you to prior statements that would imply knowledge of the answer to such questions? thanks.
If he does recall and says "I don't recall," then he's committed perjury. The plausibility of Swarbrick's lack of memory varies. For instance, I find it plausible that he didn't remember the specific number of times he had talked to a person or the specific year that something happened. But the idea that he couldn't even approximate doesn't hold water. As noted by others, this deposition is a perfect illustration of how not to handle a slippery witness. The attorney could have kept hammering and either obtained some useful information or made Jack look (more) ridiculous. An attorney who gets that answer to a question the witness should be able to answer shouldn't just shrug his shoulders and move on.
They are less successful in court, however. Too many "I don't recall" answers, in circumstances where the witness absolutely should recall, raise an inference of prevarication. If it can be proven that "I don't recall" testimony is knowingly false, it can support a perjury charge.
Even in politics, the tactic can backfire. In 2007, the then-Attorney General said "I don't recall," or variations thereof, anywhere from 64 to 72 times (depending on who was counting) during a Senate hearing on the firings of US Attorneys. There was a strong negative reaction to the testimony, and after four months of mounting pressure, the AG resigned.
Privilege assertion. It's one thing to discuss it in the abstract and try to sound smart like it's something you'd argue in a vacuum or raise in a law exam answer. But it's another to assert it and risk sanctions, good will and credibility with opposing counsel, and the judge.
If someone pulled that crap with me or any lawyer i practice with on either side of the aisle, it would not fly. The deposition would shut down. And if a witness threw a contrived tantrum like Saucy did, he would get embarrassed.
And i say that not because i am Billy Bad Ass, but just because i know how real lawyers operate.
And I've had witnesses curse at me, threaten me, and storm out of the room, all with cameras rolling during depositions.
It's all contrived and their lawyers put them up to it, in my opinion.
I once had a very contentious deposition that took several days (I represented one of about 30 defendants). Deposition was in Minnesota, and I was the only out of town lawyer involved. I crossed the witness, and caught him out in a couple of lies. His lawyer was pissed - making objections, instructing his client not to answer my questions, and even trying to ask questions himself during my cross (which was on videotape). At the end of my cross, the guy's attorney said he was going to have significant redirect, but that it couldn't be done that day, so we'd have to come back.
I flew back from VA to Minneapolis on a Sunday (Father's Day), and the "redirect" consisted of 5 minutes' worth of questions about what a bad guy I was. Not a single substantive question. Nothing that any judge would allow a jury to see or read. He did it just to make me fly back and forth to Minnesota one more time. I had that bit of transcript up on my bulletin board for a while.
That's just an example of the stuff I see across the country in my area of practice.
...who was the attorney for USA Swimming in Swarbrick's depo. He was opposing counsel on two cases I worked on about 7-8 years ago. Absolute meathead of an attorney. None of the things he said during the depo surprised me a bit.
Mary Barra's handling of the GM ignition switch problem is instructive. Sometimes, you just have to own it. You might be better off in the long run.
In the actual work product it seems like he was actually trying to get tougher about abuse. Look if he knew about it and did nothing then he needs to go ASAP, but this seems a little witch-hunt. Does the accountant for USA Gymnastics get fired? I'm just not sure what there is to see other than that he was their lawyer, and bad things were going on at that time.
Look at these things which are directly attributed to him: Bold is my emphasis
In a 2007 book entitled "How to Keep Your Children Safe: A Guide for Parents," the author has the following citation:
Swarbrick, Jack. "USA Gymnastics Code of Ethics: Sexual Misconduct." Womensport 2, no.3 (1997).
1998:
Technique Magazine: “USA Gymnastics attorney, Jack Swarbrick, reviewed a number of recent Court cases and concluded: ‘I believe the case summaries offer compelling testimony for the importance of creating and administering the type of member misconduct procedure you now employ [in 1998]. Even more so, they demonstrate why your clubs should be supportive of those efforts.
1999:
USA Gymnastics CEO Robert Colarossi sends a letter ... about USA Gymnastic's ability to suspend employees charged with a child abuse-related felony. When the USOC said this policy failed to meet its standard of providing hearings before suspensions, Swarbrick attempted to broker a compromise ... The USOC rejected this compromise, saying "a hearing must be provided for in all situations."
According to Irv Muchnick at concussioninc.net, Swarbrick “did not deny that he had counseled USA Swimming on sex abuse in the late 1990s.” Muchnick says according to his sources that Swarbrick warned USA Swimming executive director Chuck Wielgus “that the issue of sexual molestation by swimming coaches of youth athletes under their tutelage posed a grave threat to the organization. The sources say Swarbrick’s advice was instrumental in the formation by USA Swimming of a task force on sex abuse in the early 2000s.”
and only trying to fix things, then why was his testimony such a mix of bad memory and attorney client priviledge?
Unfortunately, however, despite all of the good things being said publicly at the time, on the inside USAG was ignoring complaints habitually and generally fostering an enforced atmosphere of abuse and silence. Documents, releases and waivers to that effect were signed by the abused girls, documents that to any sane person would seemingly have required the consent of general counsel. They took a hard line on previously charged and convicted offenders while at the same time doing nothing to involve law enforcement when complaints were brought to them on the front end.
Jack said all of the right things in public but USAG was still a toxic environment, both during and after his tenure there. The policies he may have played a part in crafting were a big part of that. Whether he is truly culpable remains to be seen, but he got awfully forgetful and defensive when deposed under oath about the whole thing.
A legal framework and self-protective culture was developed at USAG that incubated and harbored serial pedophiles, essentially creating the environment that fed them victims.
The National Team Agreement required athletes to “submit to all reasonable requests for examination or evaluation by medical personnel retained by USA Gymnastics.”
Who helped create that framework?
As she says, this is bigger than Nassar.
If the CFO is the accountant, then yes, he should be fired
They allowed 50+ people to molest and assault gymnasts for 20 years.
"We all failed."
So nobody is held responsible.
Where have I heard that before?
anything..." "As general counsel for the USA gymnastics team, I was kept in the dark for decades and hundreds of cases of child abuse."
Accountant my ass.
Their "hearsay policy" is not only illegal, but morally and ethically devoid of human emotion. Yep, he didn't know about that policy either.
"Well, as general counsel my chief responsibility was ordering and picking up lunch." That I might believe.
Did an accountant review every allegation of abuse sent to USAG?
Did an accountant advise USAG they had no reporting obligation with respect to allegations made by people other than the victim or family, because it’s “hearsay”?
If so, an accountant would be under fire. But a lawyer did these things. The question we have is, was Swarbrick that lawyer?
I believe we have. When I read his testimony, when I read the articles, and when I when I read about his role described as "advised on a daily basis" I have to think that his participation in drafting the policy ought to be investigated. I believe that's all we're calling for here. ACross has stated that it's inappropriate to claim "Jack Knew." I agree with that position.
It's irresponsible to ignore the circumstances of his involvement in this tragedy because as you pointed out he was their general counsel.
It's funny that someone brought up the hypothetical of "what if he were an accountant?" Perhaps that person isn't familiar with Arthur Anderson and Enron.
EDIT: More alarmingly, maybe that person thought Arthur Anderson bore no blame for what happened with Enron. That is an incorrect position.
Rothstein knockoff radio variety hour.
Hadn't seen that suggested. Should have definitely seen a pattern and acted
The USAG executive office might have had control over what a lawyer saw. See the discussion further down the link.
And I don’t know who “the lawyer” was.
when a simple message of "Cut the perpetrator's nuts off would suffice".
But it greatly aggrieves me if your response is commonplace among Notre Dame alumni.
To me at least, the core questions are What did Swarbrick know? and What did he do in response to that knowledge?
This man was the head lawyer for - at the bare minimum - an abhorrently negligent institution that allowed the molestation of (conservatively) dozens of young women. He consulted with the leaders of this institution on how to handle sexual misconduct. He seemingly wrote their policy on it. He was aware of sexual misconduct as a major issue.
None of these facts makes him inherently guilty, but they make it necessary to answer those core questions. And they certainly make him more central than the accountants - a comparison that leads me to question the faith in which you are approaching this topic. And as far as I've seen, no one has said to fire him (for this issue) based on the facts as we know them.
As for your points:
1) This makes me question your grasp of the facts of this issue. "How to Keep Your Children Safe" isn't a book "directly attributed to him." It's included to show that he wrote the code of ethics on sexual misconduct. I don't understand how that shows he was "actually trying to get tougher about abuse."
2) It appears to me that Swarbrick is lauding the misconduct procedure employed by USA Gymnastics in 1998. Do you think USA Gymnastics had an effective misconduct procedure in 1998?
3) I agree that this action does not necessarily reflect poorly on Swarbrick, but it shows how involved he was in the sexual misconduct policies of USA Gymnastics. This may help to answer the What did he know? question.
4) Again, I'm not sure that Swarbrick trying to prevent a "grave threat to the organization" indicates that he was "trying to get tougher on abuse." Nothing that occurred after the conversation between Swarbrick and Wielgus provides evidence that USA Swimming made circumstances better for victims.
I'm trying to be careful to leap to judgments, but to look at these facts in tandem with what we know about the history of USA Gymnastics and conclude that Swarbrick was trying to get tougher on abuse does not compute for me. It looks like an institution trying to protect itself.
And excellent job on the summary. I hope it is tacked to the top (along with your post here which does a nice job summarizing how many of us are feeling about all of this).
The documents you reference are one part of the analysis. We don’t have any other evidence right now. Which is the point.
He refused to answer even the most basic questions about his work, including whether he even knew certain people.
He did this work for over 20 years, up to 2008.
There’s more to know, I’m sure you agree.
tion in the context of this time line, then ND will cut bait on Swarbrick. Understandably, he is is no position to answer meaningful questions, and that will be the end.
On balance, I think they care more about their own image than the abstract idea of past sins not committed on their campus. Past evidence amply demonstrates this.
sex abuse scandals over decades, and Notre Dame's obvious affiliation, ND can't afford to have even a suggestion of harboring someone involved in this type of cover up.
press, I'm rather certain ND will care about its image.
Below we have the reference to Gregg Doyel being on the case. It's worth looking back to last year's exposes on various media figures, where in most cases there was nothing in the press until everything but the kitchen sink landed on the subject of the investigation.
I expect him to be gone by the next BOT meeting.
This scandal is radioactive. Swarbrick will be forced to step aside to spare the institution the embarrassment of having its sitting athletic director avoiding the public.
These things tend to move fast once they break, too. In the Penn State case, it only took a week or so before Paterno was out of there. MSU's president just met the same fate.
his tenure at USA Gymnastics disappeared...
Perhaps Jack Nolan can describe, why?
https://ndnation.com/boards/showpost.php?b=football;pid=256274;d=this
Peeps has shared some very interesting stuff the last couple days. He's clearly talented as an investigator.
[Edit: As well as coachslacker's July 29, 1995 reference to Swarbrick presenting with Nassar. . . http://www.gymn-forum.net/Digests/Vol3/29Jul1995V3I223.htm]
tsl4264's post yesterday:
"The Oct. 11, 1999 letter from USA Gymnastics attached to the Maroney Complaint describes a compromise reached between Swarbrick (on behalf of USAG) and a person named Scott (on behalf of the USOC), wherein Swarbrick recommended to USAG that it agree to forgo its ability to suspend immediately "any individual who has been charged with a felony involving a statute designed to protect children (e.g. child molestation, statutory rape, battery or assault against a minor)."
http://www.californiasexualabusefirm.com/documents/Complaint-FILIED-12-20-17.pdf (letter at pp. 59-62)
The "Scott" who is referred to in the letter is none other than Scott Blackmun, one of the addressees of the letter, who was Deputy Executive Director and General Counsel for the USOC at the time. This is the same Scott Blackmun, the CEO of the United States Olympic Committee, who in an open letter to Team USA called on all USA Gymnastics directors to resign in the wake of the Larry Nassar abuse scandal, in order to start to change the culture of the sport. This the same letter that indicates one of the follow-up actions to be taken by the USOC will be the launching of an independent third-party investigation of USA Gymnastics to determine who knew what and when. It will be interesting to see if the 1999 letter regarding the compromise Swarbrick and Scott attempted to broker will come back to bite both of them."
In fairness, the other posters' research and insights prompted quick research on a slow work day (which began shortly after watching the Nassar sentencing online).
It was pretty easy to just google Swarbrick and USA Gymnastics, find KByrnes' great 12/26/17 post (the 1st item shown thankfully), scroll down and find Technique Magazine online where he was mentioned in 1998, run Swarbrick name searches across issues further back, and then run into the USA Gymnastics Magazine prior issues.
If I can do this, then no doubt IndyStar reporters have already done this. Hopefully. And I don't expect the same from the South Bend Tribune.
[Edited to add watching the Nassar footage . . . that re-directed the day pretty dramatically]
Like notice of Swarbrick and Nassar presenting on the same day at the USA Gymnastics Congress.
Date: Sat, 29 Jul 1995 17:36:02 -0600
From: ***@RMII.COM
Subject: Congress schedule
Erica and others, Here is the Congress schedule (the latest one) taken
today right from USAGO!
CONGRESS PRESENTATION SCHEDULE (updated 7/29/95)
(deleted)
9:15-10:15
M - Peter Vidmar - Dedication and Goals
B - T.Lenzini - Avoiding the Cash Crunch
USAG - Swarbrick, Kreutzer-USAG Code of Ethics
WJ - A.Schweyer - Jr.National Elite Testing
S - Dr.Nassar - Injury Prevention Training
USAG - M.Ruskamp Guarding NCAA Eligibility
A - Bucaro, Lyons, Lowe, Calvert-Cheer Jumps & Tumbling
P - J.McCarthy Successful Theme Weeks
Says he is on it
what stories of note has he worked on before?
you've read his work before likely.
him mixed up with the wanker Dennis Dodd. Dodd is a hack, Doyel does better work.
It can be easier for someone to get answers to questions when the other person doesn't why he's asking them.