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A Philadelphia Union blog hosted by Christopher A. Vito and Matthew De George

Thursday, January 7, 2016

The 'killer' problem revealed by Nowak and the Union

Court documents revealed this week show the depth of dysfunction
behind the scenes during Peter Nowak's tenure with the Union.
(Times File)
For those residing in the peculiar Venn diagram overlap of “people who follow the Philadelphia Union” and “people with a high tolerance for digging through legalese,” this last day has been a whirlwind. Jonathan Tannenwald at Tuesday night obtained many of the relevant documents relating to the long-standing lawsuit between Peter Nowak and related entities for wrongful termination from the Philadelphia Union, and more documents were made public Wednesday. You can find a tidy listing of the highlights divulged by Tannenwald’s tweets here at the Brotherly Game, and it's worth picking through his timeline for gems.

All the documents are available at Philly Soccer Page, and I’d expect plenty more reaction there in the coming days. If nothing else, Steve Holroyd’s guide behind the curtain of arbitration proceedings such as these is extremely helpful.

In the over 700 pages of disclosures, there is plenty of new information, lurid details and downright concerning glances at the inner workings of the early Union franchise. Among the very important documentation is Nowak’s contract, liked at PSP as Exhibit A. (All of these links will be pdfs, so browsers beware). The most pertinent are the two parts of Exhibit C, which is the Union’s post-hearing brief. Tab 1 is more detailed; Tab 2 is more condensed. Nowak’s post-hearing brief is available in Exhibit D.

Exhibit G is arbitrator Margaret Brogan’s interim decision, followed by her final award in Exhibit L, which finds decisively in the Union’s favor and orders Nowak to pay nearly a half-million dollars in legal fees.

There are many points of granular interest. But I want to pinpoint something else that is inherent in the text and that still has real ramifications for the Union. To be sure, Nowak’s influence has waned. The number of players exposed to his brand of management number in the single digits, and the hiring of a real sporting director in Earnie Stewart is further hope for the maturation of the Union as an organization in the club’s second half-decade. Beyond the headline-catching salacious details – and yes, it’s taken me this long to type the word “spanking” – the ramifications of the disclosures echo much farther down the line, which imbues the past with greater significance.

First, the files The crux of the determination for Nowak’s dismissal and the subsequent reason why Brogan found that not to have constituted wrongful termination lies in the opening months of 2012. Nowak was fired June 13, 2012, and the timeline of events leading up to that are a bender of disconcerting behavior.

Here’s the rough timeline, as alleged in Exhibit C , Tab 2, from the Union’s perspective, many of the details of which Nowak was only made aware of after his firing:

March 15: After a routine meeting with Philadelphia Union players, MLS Players Union head Bob Foose reaches out to Technical Director Diego Gutierrez regarding an issue that arose in conversations, the specific nature of which is redacted in the filings. This avenue of dialog leads Foose to further inquiries of various instances of alleged interference by Nowak with players reporting issues to the MLSPU and perceived retaliation for said reporting.

April 21: Union beat Chivas USA, 1-0, in Carson, Calif., in a game marred by two red cards and Nowak rushing onto the field to confront a Chivas player during a melee. Nowak is subsequently suspended and fined.

May 22: During a prescheduled meeting between MLSPU and MLS, concerns regarding the aforementioned redacted issue, “two separate interference issues” and the belief that an unnamed player was traded in retaliation for reporting to MLSPU are broached. (C-2, Page 14)

May 24: Shep Messing, who operated as an agent for Nowak (to the extent that Nowak gave him a championship ring from D.C. United) reaches out to Union CEO and Nowak’s direct supervisor Nick Sakiewicz with details of Nowak’s search for other employment while at the helm of the Union as well as disparaging remarks made by Nowak with regard to the competence of Union ownership and the club’s financial well-being. On April 30, documents reveal that Nowak had corresponded with retired midfielder (and now Chicago Fire coach) Veljko Paunovic about working on a project together whereby Nowak would be the coach and Paunovic his assistant. Nowak’s overtures through Messing included asking him to contact U.S. Soccer President Sunil Gulati following the U.S.’s elimination from the 2010 World Cup to present Nowak as a potential replacement for Bob Bradley. (It is pertinent to this discussion that the Union, per Nowak's contract agreement, paid U.S. Soccer a $75,000 buyout to obtain the services of Nowak, then Bradley’s assistant, for the job in 2009.)

On or about May 24 (after the May 22 meeting): Todd Durbin, MLS’s Executive Vice President for Competition, Player and Labor Relations, reaches out to Sakiewicz to inform him of the possibility of an MLSPU grievance and a league investigation.

May 31: The infamous trail run, in which Union trainer Paul Rushing testified of an altercation with Nowak after the coach denied water to players undertaking a 10-12 mile run near YSC Sports in Wayne on a humid, 80-degree day. Alleged misconduct from that day include Nowak pushing injured players to participate, leading to exacerbations of those conditions, and the notion that the run was punitive for the May 26 loss to Toronto, including the cancellation of scheduled days off. This incident spurs further inquiry from the Players Union as well as MLS, through its training and medical operations staff.

On or around June 1: Through Foose’s investigations, he is “made aware of a pattern of abuse directed by (Nowak) against players who had suffered concussions.” (C-2, Page 46)

June 4: Foose and the MLSPU become aware of complaints of hazing and “spankings” of young players after training camps conducted personally by Nowak. Those incidents cover 2010, 2011 and 2012.

June 6: Durbin again contacts Sakiewicz, noting concerns; later that day, the league undertakes an investigation. When Sakiewicz begins an internal investigation into these matters is the subject of debate between Nowak’s camp and the Union’s claims. By the Union’s math, Nowak racked up $55,000 in fines, or around 15 percent of his salary, in the opening months of 2012. (C-2, Page 54)

June 7: Nowak is alleged to have set water limitations for players during a practice session.

June 12: Durbin issues what is known as the “MLS report” of findings, which strongly recommended termination. Two days earlier, Durbin interviewed players as part of the investigation. The inquiry by the MLSPU informed Durbin that it was contemplating a strike should Nowak still have contact with players. (C-2, Page 39)

(It’s important to note that in all court filings that players’ names are redacted. In many cases, connecting the dots between who was traded or who had what injury of who received what red card isn’t difficult to discern or to be pieced together from existing knowledge, though as those names are redacted, I won’t be making such assertions.)

The other timeline Many of the assertions on the timeline weren’t disputed by Nowak. But there’s another timeline that warrants explanation, and while it's not as egregious as what is being alleged of Nowak, it is concerning it its own right.

The Union hired Nowak in 2009 to be the first coach of the expansion club, in doing so paying the aforementioned buyout clause with U.S. Soccer. His original employment agreement, disclosed in Exhibit A, lasted through Dec. 31, 2012.

After Nowak’s first season, a none-too-spectacular expansion campaign, Nowak and Sakiewicz agreed on a “Letter Agreement” to extend his contract to Dec. 31, 2015, as in just about a week ago. On Dec. 20, 2011, the parties put that agreement on paper, changing the compensation schedule and bestowing upon Nowak the title of “Executive Vice President of Soccer Operations.”

Among the perks added by this new contract was a $60,000 loan from the club. Nowak’s salary for the 2015 season was slated to be $408,446. In addition to all kinds of add-ins – $69,500 signing bonus, up to $10k for relocation costs, suits, company car, 16 round-trip tickets for family to and from his home base in Florida – the contract also included what is denoted as the “Pino Agreement,” an $85,000 per year contract that has the Union license the right to use Nowak’s likeness from Pino Sports, LLC, basically Nowak’s holding company. The logic behind this, as variously explained by Sakiewicz, was to create a long-term plan for the Union, giving Nowak broad control to shape the team’s vision over a number of years.

As this is a wrongful termination suit, it’s clear that the burden of proof is hefty for exiting a contract as with Nowak’s firing. But that’s not applicable for entering a new contract, which the Union willfully (and to editorialize, ill-advisedly) did in 2010, then formally in 2011. And that has had fairly disastrous consequences.

It’s no coincidence that the briefs often use phrases such as, “shortly after the 2011 contract extension.” The events of 2012 are cited by Brogan as the main time frame in which the termination decision was made.

But that’s not to say there weren’t warning signs before the 2011 agreement that should’ve given the Union pause in entering an even longer agreement with Nowak. Sure, they were fresh off the high of the organization’s first (and still only) playoff appearance. But it’s worth asking, how many warning signs were present to insiders as to Nowak’s behavior prior to Dec. 2011?

For one, the hazing. There are various passages questioning Sakiewicz’s knowledge of the hazing incidents. Nowak, corroborated by Gutierrez in Exhibit D, alleges that assistant coaches John Hackworth and Rob Vartughian taped the hazing and the Sakiewicz (and Richie Graham) saw the videos in in 2011. (Page 50-51). Exhibit C, Tab 1 redacts the date of the Sakiewicz’s exposure to the hazing videos but indicates that he directed Nowak to put an end to it (Pages 75-76). In Tab 2, the date of his awareness is claimed as 2011. (Page 48)

There’s this little ditty about violations within the Homegrown program that MLS meted out to the Union as a result of Nowak’s actions in 2011 (Exhibit C, Tab 2, Page 58):

Also, three times in the summer of 2011, Nowak was cited by MLS for playing Academy players in friendlies against Everton and Real Madrid – which drew memoranda of rules reminders from MLS and eventually fines – then by playing a trialist in a friendly against Harrisburg City Islanders. (C-2, Page 56-57). There are also allegations of insubordination of Nowak in 2011, something that Nowak’s lawyers decry as an irrelevant “’pile on’ strategy” (Exhibit F, Page 3). There’s also the observation that the significance of instances of alleged insubordination in 2011 is nullified by the club granting him a new contract just months after they occurred. (Exhibit D, Page 36)

Also of note is this disclosure by MLSPU head Foose, who notes that because "players of the Philadelphia Union were 'extremely afraid' of the potential 'consequences' or 'retaliation' if it became known they participated in a league investigation," the MLSPU took the unusual step of asking Durbin to include a confidentiality agreement in the MLS report. (C-2, Page 35, quoting from hearing transcripts) The only other time Foose had asked something similar of MLS was in an investigation on Nowak from his tenure at D.C. United. The filings don't indicate whether the Union were privy to knowledge of Nowak's previous investigations or what other potential red flags may have turned up in a vetting process.

One of the rare moments of humor in this entire dispiriting affair is provided by Messing, a mutual acquaintance of Sakiewicz and Nowak and a man with his own past. In Nowak’s brief, his attorneys quote a transcript in which Messing is purported to have said that Nowak, “in the best sense is a driven, killer, maniacal player and he was that way as a manager.” (Exhibit D, Page 7) There’s not much that commentary can add to that.

So through all that, from the warning signs that were apparently ignored in 2011 and then the way in which the situation snowballed in 2012, I think it’s worth asking: Where would the Union be if they had not extended Nowak’s contract in December 2011 and had him enter a contract year in 2012?

Here’s what still applies

For three and a half years, the sides have wrangled in court. The representatives of the main parties in the original employment agreement, Nowak and Sakiewicz, are in the organization’s rearview mirror. The litigation is technically ongoing, but you can sense the increasingly desperate tones of Nowak’s appeals. The familiar tropes voices in the testimonies – particularly about Nowak’s allegations that he didn’t report to Sakiewicz but rather to Jay Sugarman and the Union’s assertion that that constituted insubordination – echoes the ‘who’s in charge’ inquiry that has long plagued the club.

But this quote is, I think, revealing. The Union’s filings charge Nowak with substantially damaging the reputation of the club and thereby reducing the value of its brand.

Here’s Sakiewicz’s excerpted testimony , specifically referring to the MLS report on Nowak.

Source: Exhibit C, Tab 2, Page 61

There’s plenty to speculate on, in terms of dollars and cents and punitive judgements, as to what impact Nowak had on the Union’s future. But six and a half years on from Nowak’s assumption of the job, there can be no doubt that the quagmire the club finds itself stuck in is directly related to the coach’s time in Chester. And the legal documents illustrate that Nowak isn’t the only one culpable for this MLS treadmilling.

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Anonymous Anonymous said...

It is best to bury this chapter in the Union's history. I just wonder if Coach Hackworth should be retained considering his participation in the hazing of younger players.

January 9, 2016 at 8:00 PM 

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