After a four-month investigation into a claim that Sacramento Kings head coach Luke Walton sexually assaulted and repeatedly harassed former Spectrum SportsNet reporter Kelli Tennant, the NBA and Kings announced on Friday that there was “not a sufficient basis to support the allegations.” The investigation is now closed, though could be re-opened should additional evidence surface.
The investigation was led by two accomplished attorneys: Elizabeth Maringer, a former Assistant U.S. Attorney for the Southern District of New York and currently the league’s senior vice president and assistant general counsel for integrity and investigations, and Sue Ann Van Dermyden, a Sacramento-based attorney with deep expertise in employment law and workplace investigations. Maringer and Van Dermyden interviewed more than 20 people, including Walton, and examined numerous sources of evidence.
Through her counsel, Tennant, 31, declined multiple invitations to be interviewed by Maringer and Van Dermyden. In April, Tennant sued Walton, 39, in Los Angeles Superior Court for assault, battery, sexual violence and related claims. The case remains on the docket and could lead to developments that spur the NBA and Kings to re-open their investigation.
A primer on Tennant’s accusations and Walton’s rebuttal
The Crossoverpreviously detailed Tennant’s accusations. In brief, Walton and Tennant have known each for years. Tennant claims that Walton wrote the foreword to Tennant’s 2014 book, The Transition: Every Athlete's Guide to Life After Sports. Through his attorney, Mark Baute, Walton disputes this assertion. “Mr. Walton,” Baute wrote in his client’s answer to Tennant’s complaint, “did not write the foreword of the pamphlet/book at issue.”
Regardless, several months after the book’s publication, Walton—who was an assistant coach for the Golden State Warriors at the time—met with Tennant at the Casa Del Mar Hotel in Santa Monica. The Warriors were staying at this hotel for a road game against the Los Angeles Lakers.
The meeting, as depicted in Tennant’s complaint, was intended for Tennant to give a copy of her book to Walton in the hotel lobby—and nothing more. Walton’s answer maintains that Tennant requested the meeting. As remembered by Walton, Tennant merely wanted to “say hello” to him in person.
Tennant recalls that after she arrived, Walton urged her to join him in a discussion in his hotel room. She felt comfortable with the invitation, in part because Walton was married with children and in part because Tennant had known Walton’s wife, Bre Ladd Walton, for a long time.
After a few minutes of small talk in Walton’s hotel room, Tennant charges that Walton became sexually violent. According to Tennant’s retelling, the 6’8", 235-pound Walton suddenly pinned her on the bed and then forcibly kissed her on the face, neck and chest and groped her breasts and groin area. Walton did so, Tennant maintains, while she repeatedly yelled at him to “stop it.”
Walton’s answer, which was filed in court on July 3, offers a completely different depiction of the hotel meeting. The answer asserts that the “encounter” between Walton and Tennant “was very short, entirely pleasant and consensual, and did not involve any raised voices or grabbing/groping/restraining of her arms, hands or her person, nor did it involve any awkwardness, and was platonic in nature.” In addition, the answer stresses that Tennant “did not ever complain to Mr. Walton or to anyone else, including law enforcement, about any aspect of the visit that she initiated.”
Tennant’s complaint also accuses Walton of sexually inappropriate conduct after he became head coach of the Lakers in 2016. Tennant would regularly interact with Walton due to her work as a host of live studio shows for Lakers games and a reporter for the team’s pre- and post-game coverage. She insists that Walton often “tried to impose himself” by hugging and kissing her. Tennant also recalls Walton looking at her in sexually suggestive ways and making lewd remarks while in her presence.
Baute, who successfully defended Derrick Rose in a sexual assault civil trial, asserts that Tennant’s assertions are “outrageous” and lack any evidence. In the answer he wrote for Walton, Baute insists that Tennant often didn’t show up for work. “Ms. Tennant,” the answer notes, “had a chronic absentee problem while working part-time at Spectrum Sports, and she voluntarily quit her job for reasons unrelated to Walton.” Further, the answer maintains that Tennant is suing Walton “because she needs money.” In that same vein, the answer charges that Tennant waited too long to sue Walton under California’s statute of limitations.
Tennant’s allegations describe incidents that occurred before the Kings hired Walton as head coach in April. The Kings were nonetheless crucial to the investigation given that they employ Walton. An adverse finding by Maringer and Van Dermyden could have led the Kings to fire Walton for cause.
NBA would counter Tennant’s depiction of the league
Tennant’s complaint, as drafted by attorneys Garo Mardirossian and David deRubertis, describes the NBA as a hostile environment for women and one that ought to be exposed in the #MeToo era. “Like women in so many other industries, from Hollywood to politics, women connected to the NBA,” the complaint alleges, “have long had to suffer in silence through the indignities of gender abuse and sexual exploitation at the hands of famous, wealthy and powerful men.”
The NBA has factual grounds to challenge this depiction. Of the major pro leagues, the NBA is the most gender inclusive. Through the WNBA, the NBA is the only league to launch and finance a companion league for women players. Also, more and more NBA teams, including the Boston Celtics (Kara Lawson), Cleveland Cavaliers (Lindsay Gottlieb), Dallas Mavericks (Jenny Boucek), Indiana Pacers (Kelly Krauskopf) and San Antonio Spurs (Becky Hammon), employ women in full-time roles as either coaches or front office executives. There are also several women, including Lauren Holtkamp and Ashley Moyer-Gleich, who are NBA referees.
Meanwhile, NBA commissioner Adam Silver has prioritized the development of pathways for women to obtain leadership roles in basketball. In May, Silver told The Economic Club of Washington D.C. that he would like to see about half of new referees and coaches be women. Silver has also partnered with the NBA with LeanIn.org for various programing, including public service announcements on “the critical role that men play in achieving gender equality.” Also under Sliver’s watch, the league instituted a hotline for employees of the league or franchises to confidentially report concerns of workplace misconduct.
The NBA, along with the National Basketball Players’ Association, have also crafted pro sports’ most detailed workplace policy for combatting violence against women and children. Under Exhibit F of the collective bargaining agreement, acts of domestic violence are explicitly distinguished from other types of personal misconduct. They are also governed by a set of rules designed by health and legal experts.
That’s not to say the NBA hasn’t encountered issues with a hostile work environment for women employees. In 2007, a jury awarded $11.6 million in damages to former New York Knicks employee Anucha Browne Sanders after finding that she had suffered sexual harassment in the Knicks workplace. Sanders had sued Knicks owner James Dolan, Cablevision (the parent company of the Knicks and Madison Square Garden) and former Knicks coach Isiah Thomas for hostile work environment and retaliation. According to Sanders, Thomas called her a “b---h” and a “h-.” The defendants appealed the jury’s verdict but reached a settlement with Sanders before the appeal was heard. Thomas has maintained that he is “completely innocent.”
The Dallas Mavericks provide a more recent example of an NBA franchise described as having a hostile workplace for women. As revealed by Jon Wertheim and Jessica Luther in a 2018 Sports Illustrated exclusive, women employed by the Mavericks accused former team president and CEO Terdema Ussery of misogynistic and predatory sexual behavior.
The league responded quickly. With the NBA’s blessing, the Mavericks retained two out-of-state attorneys, Evan Krutoy, a former Manhattan prosecutor who successfully tried homicide and sex crime cases, and Anne Milgram, a former Attorney General of New Jersey and assistant U.S. Attorney, to lead a probe.
Krutoy and Milgram were given complete access to Mavericks’ witnesses and evidence. One might be skeptical that attorneys hired by the Mavericks would find the Mavericks at fault.
Yet that is what Krutoy and Milgram concluded.
Their investigation corroborated Wertheim and Luther’s findings. Krutoy and Milgram found that improper workplace conduct occurred for years and that the Mavericks needed to change policies. In response, Mavericks governor Mark Cuban agreed to pay an amount that far exceeded the maximum fine permitted under the league constitution. He donated $10 million to organizations dedicated to curbing domestic violence and promoting opportunities for women in the workplace. The investigation into the Mavericks’ workplace culture appeared credible and thorough.
Goals of the investigation into Walton
The primary purpose of Maringer and Van Dermyden’s investigation was to assess the accuracy of Tennant’s claims. Those claims center on an executive of an NBA franchise and his behavior with a person employed by a franchise’s broadcasting partner.
A workplace investigation doesn’t attempt to determine if a crime or tort (civil harm) occurred. The legal system, not private investigators, determines whether laws were broken. An employer’s probe focuses instead on whether an employee violated workplace rules and policies and, in doing so, potentially created legal risk for the employer. As highlighted by the investigation into the Mavericks last year, a probe might also suggest policy changes for how employers ought to monitor and evaluate employees.
In the context of Walton, a claim that he sexually assaulted a broadcaster in a hotel while traveling with his team suggests a risk of liability for the team and the league. Employers are generally responsible for the misconduct of employees while those employees are acting within the scope of their employment. An assistant coach staying in a hotel as part of employment could be seen as acting within the scope of his employment.
Walton’s alleged interactions with Tennant while he was Lakers head coach also appear connected to his employment. Tennant’s complaint details several incidents, including one where Lakers governor Jeannie Buss was nearby as Walton allegedly “forced an aggressive hug on [Tennant], forced kisses on her check and rubbed his body against hers . . . Ms. Tennant felt helpless and violated.”
Other than in naming Walton, the NBA has not released the names of the more than 20 persons who were interviewed. It’s a safe assumption that executives responsible for supervising Walton were among those questioned. Those persons would have evaluated Walton’s job performance, which would include assessment of his treatment of co-workers and business partners. Over the relevant period of Tennant’s claims, Walton’s supervisors included Warriors head coach Steve Kerr and general manager Bob Myers as well as Lakers general manager Rob Pelinka and former team president of basketball operations Magic Johnson.
In addition, the investigation likely obtained access to emails on NBA team servers that may have shed light on Tennant’s claims. Likewise, investigators probably explored whether Walton has ever faced similar accusations or if Tennant’s claims are unique.
Significance of Tennant not speaking with NBA, Kings
Tennant was not obligated to participate in an investigation commissioned by the league and Kings. Like other private entities, the NBA lacks subpoena powers. It can’t compel witnesses to be interviewed or share emails, texts and other communications that might be highly relevant.
Similarly, an interview with private investigators is not testimony, meaning a witness who agrees to answer questions from investigators wouldn’t tell his or her perspective under penalty of perjury. This doesn’t mean the witness will lie, but the deterring threat of a criminal charge for knowingly lying is not part of the equation. Workplace investigations are thus dependent on the cooperation and voluntary truthfulness of willing participants. Such investigations are inherently limited: some prospective witnesses might decline to be interviewed; some witnesses might lie, exaggerate, conceal or obfuscate.
Tennant rebuffing investigators could reflect several points. First, as detailed by The Crossover in April, Tennant and her attorneys might eventually add the NBA as well as executives from the Warriors and Lakers—including Kerr, Myers, Pelinka and Johnson—as co-defendants. She could argue they were negligent in supervising Walton.
This possibility became more likely when Tennant’s attorneys filed an amended complaint on June 4. The amended complaint adds a claim for negligence. The negligence claim contends that yet-to-be-named defendants owed Tennant a duty of care to avoid exposing her to an unreasonable risk of harm. These defendants allegedly failed to meet this duty. As a result, Tennant’s attorneys say she “sustained injuries to her mind and body, shock and injury to her nervous system and person, and both personal physical injuries and mental suffering and emotional distress.”
With that in mind, Tennant’s attorneys may have been concerned that their client answering questions from attorneys retained by the league would lead her to share insights that could later be used against her in litigation.
Second, Tennant’s attorneys may have worried that the interview would be similar to a cross-examination. She could have been asked questions that she perceived as hostile and that might have led her to provide inconsistent or inaccurate claims. To the extent her case would have seemed weaker after questioning, her attorneys would have found themselves in an inferior position to negotiate a settlement with Walton and, potentially, the league.
Third, it’s not clear what Tennant had to gain by participating in the league’s investigation. She seeks to remedied through the legal system by proving that Walton, and possibly others, broke the law. She would then be awarded monetary damages. The legal system attempts to make a deserving plaintiff “whole again.” The NBA’s investigation, in contrast, was not designed to remedy Tennant. As explained above, it was intended to determine if Walton, and other employees of NBA teams, violated league rules. While Tennant’s case would be strengthened if the NBA found Walton at fault and if the Kings then fired Walton for cause, Tenant’s attorneys likely viewed the potential downsides (mentioned above) as outweighing the potential upside.
In sum, whether Tennant is telling the truth and her declining to be interviewed should be viewed as unrelated. Most likely, her decision was a strategic litigation decision that neither refutes nor corroborates her claims.
What are the next steps?
Although the statement released by the NBA and Kings may be interpreted as clearing Walton of wrongdoing, the statement is actually more restrained. The investigation concluded there is “not a sufficient basis to support the allegations.” The league, in other words, has not declared that Walton is “innocent.” Such a proclamation would be inappropriate, particularly given the limitations of a private investigation and given that additional evidence could surface as part of Tennant’s litigation.
As Tennant develops her case, her attorneys may believe that persons who spoke with NBA investigators would offer different accounts while speaking under oath and thus under penalty of perjury.
At any point, the case could settle, with Walton agreeing to pay Tennant in exchange for her dropping her claims. If not, the case will likely take months to play out.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.