Saturday, August 25, 2012

David Berkoff and USA Swimming enter the SCAQ blog - Big mistake!

This BLOG POST is what sparked a 740-word rebuttal from David Berkoff, Technical Vice President, of USA Swimming. If you havn't read it, please do.

Note, the fact that he put his title in his signature leads me to believe that David Berhoff is speaking for both himself and USA Swimming.

I include Berkoff's rebuttal in block quotes and my responses to his comments are beneath those block quotes.

Dear Tony:

"... I am disappointed that you continue to post inaccurate blog comments about me without having the decency to even call me. My telephone number is listed and I am in the USAS Directory. I’m not hard to find. ..."
I won’t respond to this slam on my character. Instead I want to zero in on the exaggerations and the falsehoods that both you and USA Swimming have made in this signed letter to me.

"... As for the 2010 email you posted, this is old news. Robert Allard has been circulating that email for two years. More critically, what I wrote was true as to my recollection of 22 years ago. There were rumors. I heard them. However, I had no first-hand knowledge of whether these rumors were true. Instead, I did what I could. ..."

The “rumors” you heard were not rumors, they were real instances of sex abuse upon a minor that lasted for several years. Even per your emails it is patently obvious that you believed these “rumors” and your responses illustrate this. to wit:  “...I was sick and tired of this crap. No one was standing up. No one was willing to take on these perverts...”

Those were your words and you were right, no one did stand up.

Mr. Berkoff you are a lawyer and the idea that you must have a “victim” come forth to report a crime simply does not wash especially if it is a crime against a minor. This “victim-only” rule is an “old wives tale” that the USA Swimming organization keeps pushing and has been trying to pass off as a fact for far too long.

Though it is inconvenient to accuse an innocent person of abuse, it is far worse to allow a child to be abused because you are reluctant to speak out. The suspicion of a crime can be reported anonymously. Let the professionals based upon the anonymous report determine what happens next.

"... 22 years ago—when I was a 24 year old swimmer—I confronted a problem that I saw as unjust. I formed the first abuse subcommittee in 1991 and the committee’s work formed the basis for the Code of Conduct. I quit the Board for several reasons in 1992. ..."

I read the transcript of a video deposition you gave on January 26th of 2012 - You were NOT on a “Sex Abuse Sub-Committee in 1991 nor were you a USA Swimming board member during 1991. You admitted as such in your deposition. What you were doing during that period was training for the Olympics. [Page 178]

Though you state emphatically that you “formed the first [sex] "abuse sub-committee" in 1991,” a statement you mentioned in emails to Ken Stopkotte, Mike Saltzstein and this rebuttal post, you testified under oath of doing NO such thing.

Moreover, there are NO official committee meeting minutes or otherwise that can be presented and after going over your deposition I could only find this "shred" of an explanation that you gave regarding the formation of this “Sex Abuse Committee”:

Question: Whose idea was it to form this subcommittee?

David Berkoff: I don't know if it was mine or whether somebody just said, hey, who is interested in doing this. I don't recall. [Page 178] 

In January of this year you had no idea if you formed this “abuse sub-committee” or not but in this rebuttal letter you produce a firm date, which was not only incorrect but you take credit for being the originator. Repeat, under oath you have NO idea if you formed this “abuse sub-committee” at all.

Question: [When Asked about a letter to Ken Stopkotte and Mike Saltzstein]  Quote, As you all know, it took seven years from the date we formed an abuse subcommittee in 1992, end quote. 

When you say "we," who were you referring to when you wrote this in July of 2010?

David Berkoff: Yeah. Probably U.S.A. Swimming in general.

Question:  And why did you use the words "abuse subcommittee"?

David Berkoff: I really didn't know what else to call it. It wasn't a formal committee. All I know is it was a group of us who I recall meeting once, maybe twice discussing these issues in a very frank and open manner. And what I recall of it I've testified to before, and the only person I can recall actually being there was John Leonard [...]

Question:  Was the topic of implementing a formal Code of Conduct discussed during this meeting?

David Berkoff:  I don't know if there was actually some discussion of a formal Code of Conduct. I do believe that we did discuss the issue of whether or not we should have some kind of formal statement on abuse of swimmers.

What stands out the most for me is the “...Formal Code of Conduct...” that you so brazenly take credit for in your rebuttal. What you said in your rebuttal is that “...the committee’s work formed the basis for the Code of Conduct...” but this completely conflicts with what you answered in your deposition above. When asked directly about this “formal code of conduct” you make it clear that it may have never been discussed.

"... I got back into the USAS arena in 2010 (17 years later) largely because the athlete protection issue seemed to need more work. I drafted several versions of a new athlete protection policy before ever stepping onto the Board. These drafts were shared with the Board in July 2010 and 6 of the 7 concepts I proposed were adopted in substance and redrafted for consistency with the established Code of Conduct. In September 2010, I stood on the floor of the House of Delegates with other USAS members and advocated for the passage of these new rules. I advocated for mandatory reporting, a reporting hotline, defining sexual misconduct, education, and no statutes of limitation. That year USAS passed the most ground-breaking and cutting edge athlete protection policies of any NGB. ..."

Claiming USA Swimming’s child protection policies are the most ground break cutting edge athlete protection policies of any NGB - (National Governing Body) would be laughable if it wasn’t so serious. I suggest you look at the Little League for a class act in regards to child protection policies.

"... In 2011, I helped the athlete protection officer formulate the updated background check program and to cut costs as best as possible. That included dozens of conference calls during a time when my wife was hospitalized in Minnesota for a third hip replacement surgery. In 2011, I also helped advocate for the passage of USAS’s anti-bullying rules as well as some important additions to the athlete protection rules. I again advocated these changes on the House floor. I will be proposing legislation this week that will add more power to the Board of Review to rid our sport of pedophile coaches. ..."
After reading your deposition, I don’t believe you. Your accomplishments within USA Swimming seem to be a "multiple choice option".  When under oath you seem non-committal, when running for office or defending your positions you seem self-assured and confident.

"... Furthermore, you and your readers should know that because of the amount of work I am doing for USAS, I resigned from my position as a Partner at a law firm that I had been a part of for 15 years. I did this to spend more time of USAS issues. I made a choice—continue to take on a Partnership workload at a big firm for money or leave the firm and dedicate time and energy to USAS for no pay.

In choosing the latter, I lost about $50,000 in income per year, gave up my interest in a $16 million building, lost my equity in the partnership, lost most of my clients, and had to start over on my own. Tony, this kind of decision is not easy when your wife’s health is in question and you have two kids.

However, because of this choice, I dedicate about 800 hours a year (at least) to USAS projects and tasks. I chair, help manage, or participate in 11 different committees—more than any other Vice President. I have traveled all across the country to go to meetings and conferences. I spend dozens of evenings reading USAS proposals, reports, and information. I donate time and money to the USAS Foundation. On top of it all, I miss time with my family. I do all of this because I care about USAS and want to make a difference. ..."

When faced with the terrible adversity that befell my family, I took 5-years off and cared for them. I will leave it at that.

A word of advice, swimming is a recreational sport; I acknowledge that you love this sport but plesae keep it in perspective. Family is more important than any recreational sports activity, period!

"... Unfortunately you have interpreted my silence in the blogosphere as inaction or apathy. Far from it. I’m not the kind of guy who likes to toot my own horn, but since you have attacked my character, I am giving you the full monty. I frankly don’t have the time or inclination to get sucked into yellow journalism, rumor and speculation, or conspiracy theories, and so this is my first and last response to you. I hope you have the decency to post this reply and let your viewers judge me fairly. ..." 
I think my record of hard work speaks for itself. If I am voted off the Board, so be it.

David Berkoff 
Technical Vice President, USA Swimming

Not only do I have the decency to post it, I made my response an official blog post so now your rebuttal and my answer back to you is in a permanent archive that can be referenced for years to come.


Anonymous said...

I read Berkoff's comment on the previous post. It seemed so sincere. I haven't read his deposition, so I can't comment on Berkoff specifically. But here's what I've noticed about the depositions posted on the now defunct swimnscandal website. No-one remembers anything. No one has any knowledge.

I have a copy of John Leonard's depostion. In the morning session he answered 126 questions with some form of "I don't know", "I don't understand", "I know recall", "I don't remember".

Has everyone affiliated with USA Swimming been coached that this will blow away if no one reveals anything.

Leonard doesn't even pretend to be credible. He answers that he doesn't know his title with ASCA Council for Sport Development, yet he is the President. Are we to believe that the president of an doesn't know his title. At one point he answers a question with "I don't know what legally constitutes knowledge." Isn't he really telling his attorney he doesn't know how much he can get away with denying?

If Berkoff denied knowledge of events and involvement in a deposition, then I shouldn't be pulled in by his comment. Based on other depositions I've read I wouldn't be surprised. But at this point I don't know who to believe. I'm beginning to doubt there are any good guys at USA Swimming.

Tony Austin said...

Thank you so much. I thought I was the only person who thought that.

David Berkoff said...


You obviously did not read my deposition. You have provided no facts in support of what you say. Just insults and more sputum. In my deposition I testified about the abuse subcommittee. The notes from that committee meeting have been disclosed to your buddy Bob Allard. Everything I testified to are in the notes, which I only saw AFTER my deposition. Ask him for a copy instead of trying to spread mistruths. Fact is, I'm a good guy and people like and agree with what I am doing. You, Tony, are just another cyber-bully. Signing off.


Sarah G said...

To Dave, if you read this again:

I truly want to understand who to believe. I'd like to read your deposition. Do you have a copy of your deposition? Would you email it to me if I send you my address?

It may seem an unfair forum, but if Tony posts all your comments, it could be a good place to get things out in the open. I know from having my own blog that comments can't be edited (even stupid mistakes or redacting a name).

Tony Austin said...

Mr. Berkoff,

It's overwhelmingly clear that your rebuttal said one thing but your answers in your deposition state another. You have no wiggle room here, none. I doubt these "notes" you mention can change that.

To be perfectly fair, I can make your deposition available for a public download and if you supply me these "notes" I will make them available too.

Next, let's take up your "cyber bully" remark: That is quite a stretch don't you think considering the type of lawsuits USA Swimming has been fielding?

How do you think the victims feel when they sit through a deposition and have to talk about specific sex acts?


Tony Austin said...

Erratum, the depo has the victim's name on it, I am not sure I can make it available.

Anonymous said...

Mr. Austin,

Have you ever volunteered in a leadership position for a non-profit organization? Do you have any idea how difficult it is to effect change in a large non-profit. ESPECIALLY, if you go barging in like a bull in a china shop? That's the method you'd seem to prefer that others use. Let me clue you in. It doesn't work. Ever. People immediately tune you out. If Mr. Berkoff tried to do as you want, he'd not get anywhere and he wouldn't even get a chance to state his case. Sometimes it takes years to set the stage to make important, meaningful changes.

Sorry, but that's the way it is. Change doesn't happen overnight. In USA Swimming, even on something like this.

And no, I am not, and have never been involved in USA Swimming in my life.

Tony Austin said...

With sincerity and respect I do appreciate the constructive criticism.

Yes, I have volunteered for several non-profits and I even got my photo on the front page of a newspaper in L.A. during the Chandra Smith consent decree fiasco with the LAUSD. (The LAUSD almost took away special ed. - close call.)

What I am doing is asking members to vote in new people.

I would like to address your "bull in a china shop" quote. This is what I have learned when it comes to organizations like USA Swimming, it's my belief that with such organizations as USA Swimming, you must "bust their door down" before they ever hear you knocking.

Note, the USA-S CEO actually went on 20/20 and would not apologize to the victims for having no policy or plan in place.

That is no "china shop" he works for but rather a "fortress" with well armed "mercenaries" know as lawyers and accountants.

I thank you for your measured criticism. ;-)

Anonymous said...

The USA-S CEO does not vote.

The volunteers vote.

You "bust their doors down" and you're likely to be run out of town. It will make the volunteers with the vote angry, and they'll vote against anything you want on principle. I've seen it happen.

It may get you publicity, but it won't make a damn bit of difference.

Anonymous said...

you should post the whole deposition without your comments. it seems like you are just taking parts of it to prove your point. i would like to read exactly what he said in full. thanks

Tony Austin said...

I will do that but the point of the post was refuted a note he sent me, hence, I just addressed those issues.