MLS investigation concludes Whitecaps' response to sexual misconduct allegations was 'appropriate'

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An independent investigation has concluded that the Vancouver Whitecaps' response to allegations of misconduct by former women's coaches Bob Birarda and Hubert Busby Jr., was serious and "appropriate."

But the report, prepared for Major League Soccer by lawyers Janice Rubin and Melody Jahanzadeh of Rubin Thomlinson LLP, says while the club acted "expeditiously" in hiring an experienced workplace investigator, there were issues with the investigation itself.

The report says the initial investigations were "superficial and lacking in depth." And it concludes some of the investigator’s findings "seemed overly generous" to Birarda and Busby, despite the evidence about their misconduct towards players.

It also says the Whitecaps could have done more to support the players.

MLS hired the law firm in November to review how the Whitecaps dealt with sexual misconduct allegations against Birarda in 2008 and Busby in 2011.

Birarda also served as coach for the Canadian women's under-20 team and a separate independent review released in late July concluded Canada Soccer "mishandled" sexual harassment allegations him in 2008.

In February, Birarda pleaded guilty to three counts of sexual assault and one count of sexual exploitation for sexual touching for offences between 1988 and 2008. His sentencing hearing is set to continue on Sept. 2.

Busby has been accused of pressuring a former player for sex in 2011 when he was head coach of the Whitecaps women's team. The allegation has not been tested in court.

Busby has denied the allegations.

Both coaches left the team in the wake of the allegations.

"While the 2008 and 2011 investigations were lacking, the Whitecaps' actions indicate that they took the allegations seriously, and through the use of an external investigator, addressed them at the time. We saw no evidence of a 'cover-up' or an interest in dismissing the allegations," the Rubin Thomlinson report says.

The report says the Whitecaps have strong measures in place today "to ensure a safe environment, in the form of well-developed policies and procedures, robust training, vetting practices for coaches, and confidential reporting lines."

The report makes six recommendations "to enhance and strengthen (the Whitecaps' safe sport) efforts."

Whitecaps CEO Axel Schuster said the club commends "the brave women who have spoken up and been fierce advocates for change both publicly and behind closed doors."

"While Rubin Thomlinson’s report found that our organization took the allegations seriously and acted on the expert advice of an external investigator, it’s clear that we could have done better, especially in how we supported and communicated with our players," Schuster said in a statement. "To the women who were affected, our staff, players, and community, we are truly sorry.

"There is no place in our organization for any form of sexual harassment or misconduct. Players are the heart and soul of our organization, and everyone should be able to pursue their passion for sport in an environment that is safe, respectful, and nurturing."

A separate review — a 125-page report by McLaren Global Sport Solutions, commissioned by Canada Soccer — paints a picture of a governing body "described by many as being dysfunctional and inefficient,'' with "significant leadership upheaval and transition at the highest levels'' in 2007 and 2008.

While the McLaren report said Canada Soccer has "clearly made noteworthy progress since 2008 to improve its policies and procedures concerning harassment,'' it made 38 recommendations ranging from governance to code of conduct and player relationships.

Allegations against Birarda surfaced in May and September 2008. The Whitecaps hired Anne Chopra, an ombudsperson from the Law Society of British Columbia, to investigate the May complaint. Canada Soccer and the Whitecaps jointly hired Chopra to investigate the second complaint.

In 2011, the Whitecaps hired the same investigator after allegations surfaced about inappropriate behaviour towards a female player by Busby. While the results of this investigation were “inconclusive,” Busby’s contract with the Whitecaps was not renewed, the report says.

"Whitecaps’ response to the allegations of misconduct against Mr. Birarda in 2008 and Mr. Busby Jr. in 2011 was appropriate," says the review. "Namely, they acted expeditiously in each instance by hiring an experienced workplace investigator, relied on the investigator’s judgment and apparent expertise, and adhered to all of the investigator’s recommendations at the conclusion of each investigation."

"The Whitecaps did not attempt to dismiss or 'cover up' the allegations, but rather, took them seriously, and actively ensured that the allegations were addressed, and involved the CSA where appropriate … In fairness, we did not think that the concerns with the investigations could be attributed to the Whitecaps, given that they stemmed from the decisions of the investigator, upon whom the Whitecaps heavily relied for direction," the report added.

The Rubin Thomlinson report suggests the results of the initial Birarda probe — that he receive one-on-one coaching and sign a commitment letter — "appears disproportionate to the severity of the matter — namely, that Mr. Birarda as a coach in a position of power had sent sexualized 7 messages to a young female player."

"We query whether this was an appropriate recommendation," it added.

it also noted it could not review the 2008 severance agreement between Birarda, the Whitecaps, and Canada Soccer, saying because it was confidential, all the parties to it had to agree to let them see it. Only the Whitecaps were prepared to do so, the report says.

It also expressed "concerns" about some of the Whitecaps’ actions with respect to the players, noting Birarda’s access to an apartment complex where some of the players lived was not removed after the first set of allegations were raised in May 2008.

"To be fair to the club, they explicitly raised this with the investigator, and the investigator did not make such a recommendation. Nevertheless, we consider this to have been an oversight."

And the report says the club, following Birarda’s exit in 2008, "appeared to focus primarily on the needs of the Whitecaps and Mr. Birarda. We believe more could have been done to support the players."

The review said the Whitecaps adopted a "more player-centred response" to the 2011 allegations against Busby.

Like the McLaren report, the Rubin Thomlinson review had difficulties finding people who agreed to be interviewed. While all current Whitecaps employees agreed to be interviewed, it said "regrettably" most others didn't — including the investigator in 2008 and '11.

Fourteen people, including three former players, were interviewed.

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