This is adapted from a post originally published here on January 15. I took that post down in order to delete language inconsistent with the recent settlement of the Doe v. Muchnick lawsuit. The full text of the consent order is again reproduced at the bottom of this post. The disputed February 2012 incident, which underlay the suit, remains under investigation by USA Swimming.
by Irvin Muchnick
On January 15, I spoke at length on the phone with former North Baltimore Aquatic Club swimmer Peyton Bailey, now a freshman at the Virginia Military Institute. Bailey’s account illuminates the rancid culture in Baltimore, where corporate interests rank first and the well-being of youth athletes ranks last. Those are my words, not his.
Before getting into Peyton Bailey’s story, let me just say that if he represents the character of the students at our military academies, then our country’s future is bright. He is one impressive young man.
Three years ago, Bailey was so eager to swim for NBAC that his mother moved with him and his younger brother to the Baltimore area. (His father stayed behind at the family home in Virginia.) But their NBAC experience ended sourly last year.
Peyton said he did not witness the disputed February 2012 incident, which continues to be under investigation by USA Swimming. But he was all too familiar with the general pattern of verbal harassment and bullying of a particular 18-year-old teammate in the Challenge program.
After the alleged victim received vague apologies from two other swimmers in connection with the February 2012 incident, he took a hiatus from swimming. He returned in March — whereupon lower-level harassment and humiliation resumed without missing a beat. Bailey recalls seeing two other teammates, not the two apologists, taunting the alleged victim loudly and mercilessly, calling him a “faggot” and an “asshole.”
One of these cowards was the very same kid who had been briefly suspended from the team a year earlier for his leading role in a Facebook chorus branding the victim the “biggest fagut [sic] ever!” If there were any lessons from that episode or from the subsequent February 2012 incident, Bailey observed that they were not being learned.
Bailey and the alleged victim were in different groups at NBAC: while the former’s High Performance group swam, the latter’s Challenge group did dryland exercises, and vice versa. Bailey was out of the water when he saw things he couldn’t stand any more. The first person he approached was Jeffrey Lindner, one of the two groups’ coaches. (Lindner eventually would lose his job at the club for whistleblowing.)
Lindner encouraged Bailey to take his concerns directly to Erik Posegay, the High Performance and Challenge head coach.
Bailey walked up to Posegay on the deck as he was supervising a workout, and outlined what he’d just seen. “This has to stop,” Peyton said. “If you don’t do anything about it, I will.”
Bailey said Posegay exploded. According to Bailey, Posegay screamed at him, “Don’t you talk to me like that! I’ll have you thrown off the team!” (Lindner confirms Bailey’s account.)
Bailey showered, went to his car in the parking lot, and reviewed what had happened in a phone call to his mother, Susan Bailey. Others who saw Peyton say he was near tears — thoroughly disillusioned by the behavior and values of a team in which he had invested so much.
By coincidence, the alleged victim’s mother was also in the parking lot talking with another team mom, who fielded a phone call from Sue Bailey and handed the phone to her.
The Bailey family says Posegay misrepresented the episode in later reports to Bowman and NBAC administrator John Cadigan. According to Posegay, this was all about a swimmer talking disrespectfully to his coach. But Peyton says Posegay was the one who raised his voice and made a scene. More to the point, Posegay was the one whose fundamental response to a passionate report of the bullying of one of his swimmers by other swimmers — just weeks after apologies in another, physical, incident involving the same alleged victim — was to intimidate the reporter.
Peyton Bailey was so disgusted that he stayed away from practice for more than a month. When he returned, Posegay was away, working with Olympic prospects as an assistant coach at the Colorado training center. Bailey put in a few more half-hearted weeks with NBAC, just to stay in shape, before moving back to Virginia and preparing for college.
“I was so fed up with that team,” he told me. “I don’t get how people can treat other people like that, and how the leadership can let those kinds of things happen. I still don’t.”
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