Canada Soccer investigator will need to navigate nervous witnesses, lawyers say

In the days leading up to the 2023 Women’s World Cup in Australia and New Zealand, Canada Soccer officials worked behind the scenes to determine how to handle a complaint that had been reported to a federation board member alleging that the women’s national team program had become a toxic workplace, three sources familiar with the matter told TSN.

After the federally funded Office of the Sport Integrity Commissioner was notified and an external human relations company commissioned to investigate, Canada Soccer officials subsequently decided that the probe was not being handled properly and pivoted, bringing in Ottawa lawyer Erin Durant to start the process over and conduct her own investigation, the sources said.

Canada Soccer has not publicly acknowledged the investigation or revealed whether anyone was disciplined.

“People who were interviewed did not receive a copy of an investigation report and they weren’t even told what, if anything, the complaint had led to,” one source told TSN. “It’s safe to say that the trust that was given because the investigation was independent was lost after that. It may be hard to trust yet another independent investigation.”

Durant declined to comment. 

The sources told TSN they are open to sharing their perspective on working with the women’s national team program but aren’t sure, based on their experiences with two previous investigators, whether they should trust Canada Soccer’s newly retained independent investigator Sonia Regenbogen, a lawyer with the Toronto law firm Mathews Dinsdale.

One of the people who was interviewed during Canada Soccer’s 2023 investigations told TSN they wanted the federation to release them from a comprehensive non-disclosure agreement (NDA) so they could share their story publicly.

The federation told TSN on Friday that it would not agree to release the person from an NDA and wrote in an email that it encouraged anyone with information to contact Regenbogen, who has been hired to investigate the spying incident at the Paris Games and to also scrutinize historical ethical decision making within the federation’s national team programs.

“Sonia Regenbogen, who is currently leading the independent external review, will interview any current or former staff who wishes to speak with her,” Canada Soccer spokesman Paulo Senra wrote in an email to TSN. “Our organization will continue to take decisive action, and that can only happen by enabling this review to proceed independently.”

Trying to win over the trust of prospective witnesses is just one of the hurdles Regenbogen will need to overcome in the coming weeks and months, several lawyers who specialize in the practice told TSN in interviews on Thursday.

“Doing this work is like putting a puzzle together,” said Hena Singh, a Toronto lawyer at Singh Lamarche LLP who specializes in workplace investigations. “You are looking at one person’s word versus another person’s word, assessing credibility all along the way, and looking at the evidence that people have that corroborates what they are saying.”

The job for investigators has become more complicated in recent years thanks to so many secure communications options. Messages on Snapchat, a popular instant messaging app, automatically disappear after a period of time, and the same setting can be selected for messages on the WhatsApp, Telegram and Signal apps.

“I’ve seen situations where one person has deleted everything, or there is an agreement to delete everything, and you still have someone knowing that they are going to need cover, or maybe they have a partner or a friend who has told them to screenshot messages or take pictures of them to protect themselves,” Singh said. “But besides that, it can be hard to obtain all of the relevant text messages and documents and files you need for this work.”

Reid Schar, a lawyer in Chicago with Jenner & Block who was hired in 2021 by the Chicago Blackhawks to investigate former player Kyle Beach’s allegation the organization covered up his sexual abuse, told TSN that convincing people to agree to be interviewed can be complicated.

“Usually, the leverage an employer has is to say, ‘We expect full cooperation and that’s the expectation as part of your employment,’” Schar said. “If the individual says they won’t cooperate in this investigation, then Canada Soccer has to decide what the repercussions are, and, in my experience, the repercussion is typically, ‘You’re fired. You are not going to work here anymore.’

“It’s hard to maintain employment with people who refuse to take part in a truth-seeking exercise.”

Schar said it’s typical with many “unevolved organizations” such as amateur sports federations to not have policies about document retention or employees using their personal phones for work. That becomes an issue when an investigator wants to review phone data.

“When employees use their own personal phone, do they have to hand that over for an investigation?” Schar said. “Is there a clear policy? Some organizations have policies where employees can use their phone, but they have to turn over their data if there is an investigation like this one.

“It’s hard for an organization that is going through this for the first time. You’ll have employees saying they don’t want to turn over phones because they have medical information, photos of their kids, or whatever, on their own phones.”

Schar said it will be interesting to watch how Canada Soccer helps Regenbogen move forward with her investigation and what the scope will be. It’s unclear whether Canada Soccer will help provide contact information for both current and former employees and contractors. It’s also unclear whether Regenbogen will promise anonymity to prospective witnesses.

“Terms of the current investigation will be in the investigator’s report,” Senra wrote in an email to TSN. “The independent investigation is currently underway and therefore it would be inappropriate to comment further on any details surrounding it. When we have more to share, we will communicate it publicly.”

It’s understandable why some people might be worried about cooperating with an investigation, said Evan Krutoy, who served as a prosecutor at the Manhattan District Attorney’s Office and who was hired in 2018 by the Dallas Mavericks to investigate allegations of sexual misconduct within the NBA organization.

“People aren’t going to cooperate if they think they are going to open themselves to criminal liability,” Krutoy told TSN in an interview. “It takes a lot of interpersonal skills to get people to cooperate. You try to put someone at ease, talk about a greater good and how these matters have affected their colleagues’ lives. But even if you do that, some people just tell themselves what they want to hear, that they aren’t cheating and that things like this are just scouting. That’s where we are today.”

As TSN has reported previously, Canada’s senior national teams have allegedly been spying on other teams’ closed practices since at least 2016. Women’s national team head coach Bev Priestman wrote in a March email to a human relations consultant that spying is a widespread practice among the world’s top national teams and can be the difference between winning and losing.

FIFA assessed the Canadian women’s team a six-point penalty when assistant coach Joseph Lombardi was caught flying a drone two times over New Zealand’s closed practice ahead of their Olympic tournament-opening game, which Canada won 2-1. Canada Soccer provided FIFA and the Court of Arbitration for Sport with Priestman’s emails in connection with a failed attempt to appeal the penalty.

Canada has advanced to the knockout stage of the Olympic tournament and plays Germany on Saturday.

Unproven allegations suggest Canada has had close calls with being caught before the incident in France.

In 2021, before Canada’s men’s national team played Honduras in a World Cup qualifier in Toronto, the Honduran team stopped a practice early because someone saw a drone overhead. The allegation that Canada was responsible was never proven.

A year later, Panama’s football federation accused Canada Soccer of sending an employee to spy on a closed practice. Concacaf spokesman Nick Noble confirmed Panama made a complaint but said that the case was dropped because there was no evidence.

A source also told TSN that Canada Soccer employees used a drone to spy on Costa Rica’s closed training before their men’s U-17 World Cup qualifier at the IMG Academy in Bradenton, Fla., on May 12, 2019. Canada beat Costa Rica to advance to the World Cup in Brazil, where Canada did not advance to the knockout stage.

The source told TSN that Canada Soccer’s coaching staff was reprimanded on site by IMG for flying a drone higher than was legally allowed. (The IMG Academy is 11 kilometres from the Sarasota Bradenton International Airport.)

The IMG Academy did not respond to a request for comment.