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July 30, 2013by Irvin Muchnick
We have reported the settlement of the “John Doe” lawsuit against Concussion Inc. See https://concussioninc.net/?p=7823. The full text of the consent order is again published at the bottom of this post. I again want to thank the Reporters Committee for Freedom of the Press, and my attorneys Laurie Babinski and Mark Bailen of the Washington office of the BakerHostetler law firm.
Swimming sources have told us that USA Swimming’s investigation of the underlying February 2012 incident at a practice of the North Baltimore Aquatic Club at the Meadowbrook Aquatic Center continues.
Below, we revive the reproduction of the texts of the apologies of the two swimmers accused in the incident, as well as of the final email to the alleged victim’s mother by Bob Bowman, head coach and CEO of the club made famous by Michael Phelps.
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APOLOGY BY SWIMMER #1
Dear [parents of alleged victim], and [alleged victim],
I have always got along with [alleged victim] and we generally have always had a good relationship. This is my third year swimming in the same group with him and while we’ve had our arguments in the past I’ve always considered him a friend. We have had our ups and downs but we have always been able to overcome the problems or argument.
Last week during practice I was not focusing on what was happening around me and accidentally made contact in a sensitive area with [alleged victim] while trying to pass. Also, while I was trying to make room for myself on the wall I accidentally made contact again. All the times I made contact with him were not on purpose and I apologize for doing it.
What I did was wrong because [alleged victim] was coming to practice to work hard like he usually does and my carelessness distracted him during the main set. I have known [alleged victim] for a while so I should have used much better judgment and had a better sense of who was around me when he was in my lane that day. I feel really bad for what has happened between [alleged victim] and me.
I am sincerely sorry for what has happened between [alleged victim] and me. I am sorry for the incident to happen at the time it did because it is [alleged victim’s] last year and he was probably looking to have a fun year and was having one until this came along. I also apologize to you, the parents of [alleged victim] for having to get involved in this and having to worry about something that should have never happened. I wish the incident never happened and [alleged victim] will be willing to forgive me for my actions. I, [name], am sincerely sorry, regret what I have done, and I promise you nothing like this will ever happen again.
Sincerely,
*****
APOLOGY BY SWIMMER #2
Dear [alleged victim] family,
I would like to apologize from the bottom of my heart regarding my behavior this past week. I realize that the contact and actions between [alleged victim] and I was not only wrong but completely inappropriate. Also, this made [alleged victim] feel very uncomfortable and that is not right. I feel that this was uncalled for and I sincerely regret what happened. I could not even begin to imagine what he must have been feeling, and I will never forgive myself for behaving in such a manner. I truly wish that I could take back my actions because I know that they were wrong and made [alleged victim] very embarrassed. Also, I would like to sincerely apologize to [alleged victim] for treating him with such disrespect because it was not in any way necessary. I am ashamed of my behavior towards such an amazing individual such as [alleged victim]. Also, my behavior was extremely uncalled for considering all of the things your family has done for me and my family, too and I am immensely ashamed that I could have behaved in such a fashion that hurt [alleged victim].
I fully respect [alleged victim’s] decision to come forward about this because this is not acceptable. I have always one to try to prevent bullying and I feel that I have failed as a person for letting myself partake in such activities and not put an end to it. This problem could have been solved in other ways and I feel that it was childish of me to look away from the appropriate solutions. I understand that nothing will ever make up for my actions, and for that, I apologize to the highest extent possible. I don’t even know how to explain to your family on how badly and upset I feel about this whole situation. I should have acted in a much more mature way and prevented this outcome. I can assure you that no such behavior will ever happen to [alleged victim] ever again from me, or anyone on the team in the future.
[Alleged victim] is not just a teammate, he’s someone who I consider a friend; we practice 7 hours a day for 2 hours each day and have gotten to know each other well over the years. To have the constant fear of harassment from some of the people he is closest to is just completely wrong and should not have happened.
Again, my actions were unacceptable and for that I apologize because I realize how much of an `issue this is and am extremely upset because of my actions.
I am truly sorry for this situation and I wish I could take all this back. I can’t even begin to imagine what your family has gone through in the past week and I feel incredibly bad about this whole ordeal.
Sincerely,
*****
EMAIL FROM BOB BOWMAN
Dear [alleged victim’s mother],
I have been briefed on last night’s happenings from the coaching staff and I appreciate your concerns.
However, your sweeping statements about NBAC’s “immorality” are not in my opinion appropriate or constructive. Perhaps this break from swimming for [your son] is a good time for all parties involved to assess whether NBAC remains a viable choice for either [your son] or the other current members of the program.
Let me state unequivocally that I fully support Coach Posegay and have witnessed nothing in regards to his leadership of the Challenge or High Performance groups which would change that viewpoint.
I am, however, very concerned that the group be a constructive, positive place for young men and women to grow and learn. Surely we can expect that there will be issues of behavior and discipline. These will be addressed and we will move forward. We will not be held to your standard of moral superiority nor those of any other single member. NBAC is not a public school or institution. It is a private club whose members choose to join and participate and are also free to choose to join another organization if the program does not meet their personal needs. I invite all parties involved in these matters to consider this fact carefully.
After further review I may or may not make further comment on these issues.
Sincerely,
Robert A. Bowman
Head Coach and CEO
North Baltimore Aquatic Club
*****
CONSENT ORDER
Minor Plaintiff, John Doe, through his parents, James and Jane Doe (collectively referred to as “Plaintiff”), and his counsel, Anne T. McKenna and Andrew C. White, filed the above-captioned lawsuit against Defendants, Irvin Muchnick and Concussion, Inc. (“Defendants”). Plaintiff brought this action against Defendants as a result of blog and Internet posts made by Defendants concerning an alleged incident during a North Baltimore Aquatic Club practice that was held at Meadowbrook Swim Club in Baltimore City, Maryland, in February 2012 (hereinafter referred to as “the alleged February 2012 NBAC incident”).
Plaintiff’s Complaint asserts the following claims against Defendants: defamation, invasion of privacy, intentional infliction of emotional distress, constructive fraud, and violation of 47 U.S.C.A. § 231; simultaneously with the filing of the Complaint, Plaintiff also moved for a temporary restraining order and preliminary injunction. On May 13, 2013, Judge Richard Bennett of the U.S. District Court for Maryland heard oral argument on Plaintiff’s Motion for Temporary Restraining Order, and on May 14, 2013, Judge Bennett entered an Order which, by agreement of the parties, has remained in effect until today’s date. Subsequent to May 13, 2013, hearing, Defendants retained counsel, Mark I. Bailen and Laurie A. Babinski, and the law firm of BakerHostetler.
By agreement of the parties and the Court, a hearing date was set on Plaintiff’s Motion for a Preliminary Injunction of June 25, 2013. Prior to that hearing, however, the parties agreed to resolve this matter pursuant to entry of this consent Order and the terms contained herein.
Accordingly, the following IS HEREBY ORDERED, this 15th day of July 2013:
1. This Order and all its terms shall apply to Irvin Muchnick, Tim Joyce and any other individual associated with Concussioninc.net or any individual working on behalf of or at the direction of Irvin Muchnick; and for purposes of this Order, the terms “Defendants” shall encompass all such persons;
2. Defendants shall not publish in any format, whether written, spoken, or posted online, the following:
a) Any and all references to the real name of the minor Plaintiff, John Doe, in any correlation whatsoever with the alleged February 2012 NBAC incident that underlies the allegations in the above-captioned case;
b) Any and all references that discuss the details of any investigation by any Maryland government agencies or Maryland police departments of the alleged February 2012 NBAC incident, though references to the fact that the alleged February 2012 NBAC incident was reported to any Maryland government agencies or Maryland police departments and the disposition thereof are permissible;
c) any and all references to which information or records relating to the Minor Plaintiff John Doe may be in the possession of any Maryland government agencies or Maryland police departments involved in investigating the alleged February 2012 NBAC incident;
d) Any and all references that would identify by real name the minor, John Doe, as Plaintiff in the above-captioned matter;
e) Any discussions of the alleged February 2012 NBAC incident that refer to the matter as a “sexual assault” or otherwise state that:
· Any criminal activity occurred;
· Plaintiff’s conduct or any other minor’s conduct was in any way criminal
· Plaintiff’s conduct was in any way tortious;
3. In no way does this Order restrict or preclude Defendants from publishing any other matters in connection with NBAC, USA Swimming, or other such matters that do not pertain to the alleged February 2012 NBAC incident, or that do pertain to the alleged February 2012 NBAC incident but otherwise comply with the terms of this Consent Order;
4. Within ten (10) days of entry of this Consent Order, Plaintiff shall file a Voluntary Stipulation of Dismissal without Prejudice. This filing shall in no way preclude Plaintiff’s rights to refile this matter or bring an additional cause of action in the event Plaintiff believes that the terms of this Order are being or have been violated;
5. The parties agree that Defendants are permitted to publish the following statements regarding the above-captioned matter:
Plaintiff brought this action against Defendants as a result of blog and Internet posts made by Defendants concerning an alleged incident during North Baltimore Aquatic Club practice that was held at Meadowbrook Swim Club in Baltimore City, Maryland, in February 2012.
Plaintiff sought the issuance of a temporary restraining order, preliminary injunction, and filed a complaint asserting the following claims against Defendants: defamation, invasion of privacy, intentional infliction of emotional distress, constructive fraud, and violation of 47 U.S.C.A. § 231.
On May 13, 2013, Judge Richard Bennett of the U.S. District Court for Maryland heard oral argument on Plaintiff’s Motion for Temporary Restraining Order; with the Court’s permission Defendant Muchnick appeared pro se via teleconference. During the Course of that hearing, Defendant Muchnick argued that the blog posts were speech protected by the First Amendment, but agreed to remove any and all references to the names of minors involved in the alleged February 2012 incident and all references suggesting that he had access to information or records in the possession of Maryland government agencies that were involved in investigating the alleged incident pending hearing on Plaintiff’s Motion for Preliminary Injunction.
On May 14, 2013, Judge Bennett entered an Order wherein he denied in part Plaintiff’s Request for a Temporary Restraining Order but specifically reserved all matters raised in Plaintiff’s Motion for Temporary Restraining Order for the full hearing on the Plaintiff’s Motion for Preliminary Injunction. The Order further ordered the removal of the references described above as Defendant Muchnick had agreed pending the hearing on Plaintiff’s Motion for Preliminary Injunction. Subsequent to May 13, 2013, hearing, Defendants retained counsel, Mark I. Bailen and Laurie A. Babinski, and the law firm of BakerHostetler.
By agreement of the parties and the Court, a June 25, 2013 hearing date was set on Plaintiff’s Motion for a Preliminary Injunction . By agreement of the parties and with the Court’s consent, the preliminary injunction hearing was continued while the parties attempted to reach settlement of plaintiff’s claims. Prior to a preliminary injunction hearing being held, the parties mutually agreed to resolve this matter by entry of a Consent Order.
6. Defendants are permitted to post unsealed public records of the above-captioned proceedings and Orders of this Court, provided they do so in a manner consistent with the terms of this Consent Order. However, Defendants may not post misrepresentative excerpts of the pleadings in this case. If Defendants publish excerpts, such publication should be accompanied by a link to the entire document.
7. Defendants will remove all publications, including Internet posts and social media platforms, and all content that are inconsistent with the terms of this Order.
So ordered this 15th day of July, 2013.
William D. Quarles, Jr.
United States District Judge