Report of Investigation by Proskauer Rose LLP to Major League Soccer (3.29.2022).pdf -

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REPORT OF INVESTIGATION BY PROSKAUER ROSE LLP TO MAJOR LEAGUE SOCCER On February 9, 2022, the Portland Timbers (“Timbers” or the “Club”) notified Major League Soccer (“MLS” or the “League”) that Genessis Alarcon – the domestic partner of then-Portland Timbers forward, Andy Polo – alleged during an interview with Peruvian television that Mr. Polo had physically abused her. In connection with that notification, the Timbers also disclosed to MLS that, the year prior, on May 23, 2021, there had been a domestic incident between Mr. Polo and Ms. Alarcon during which Mr. Polo was cited with a misdemeanor charge of physical harassment, charges not ultimately pursued by the District Attorney or Ms. Alarcon. The Timbers were aware of the incident as of the date of its occurrence, but had not previously reported it to MLS. Scope of Investigation & Summary of Conclusions MLS engaged the firm Proskauer Rose LLP (“Proskauer”) to conduct an investigation into two issues: 1. Whether the Timbers intended to or did induce or pressure Ms. Alarcon to decline to pursue the criminal charges against Mr. Polo; and 2. Whether the Timbers intentionally failed to report the May 23, 2021 incident and the related criminal citation to MLS in order to protect Mr. Polo or otherwise conceal the incident. As to the first question, the investigators concluded that the Timbers did not intend to induce, and did not induce, Ms. Alarcon to refrain from pursuing criminal charges against Mr. Polo. More specifically, the investigators found that: (i) the Timbers’ provision of assistance to Ms. Alarcon after the May 23, 2021 incident was not intended to dissuade her from pursuing charges against Mr. Polo, and Ms. Alarcon understood she would receive assistance from the Club regardless of whether she pursued the charges against Mr. Polo; (ii) no one from the Timbers conditioned assistance to her on her agreement to forgo pursuing criminal charges, or attempted to dissuade Ms. Alarcon from doing so; and (iii) the decision to pursue charges was entirely up to Ms. Alarcon and she did not want to pursue a criminal case against Mr. Polo. As to the second question, the investigators found that the Timbers should have reported the May 23, 2021 incident to MLS, but that their failure to do so was the result of a lack of an understanding of the MLS Constitution, rather than an intent to conceal the incident. Investigation Methodology Proskauer undertook a comprehensive review, which included conducting nine witness interviews (five Timbers employees and its Chief Executive Officer, Christine Mascal, Esq. (Mr. Polo’s attorney, who the Timbers retained for Mr. Polo), Mr. Polo, and Ms. Alarcon). In addition, the investigators reviewed text messages, emails, and other relevant documents provided by the Timbers, the MLS Constitution, and 9 audio recordings made by Ms. Alarcon. The two audio recordings that were most pertinent to this review were: (1) the recording of a discussion between Ms. Alarcon and Jim McCausland (the Timbers’ Director of Security) on May 23, 2021, while Mr. McCausland was at Ms. Alarcon’s home following the incident; and (2) the recording of a discussion between Ms. Alarcon, Mr. McCausland, and Ms. Mascal on June 3, 2021, again at Ms. Alarcon’s home. Ms. Alarcon’s friend translated for Ms. Alarcon and the other participants during both discussions. The Timbers cooperated fully in the investigation and provided access to all witnesses and documents requested. Factual Findings & Conclusions I. The Assistance Provided By The Timbers Was Not Intended To And Did Not Induce Or Pressure Ms. Alarcon To Decline To Pursue Criminal Charges Against Mr. Polo. The investigators found that while the Timbers offered to assist Ms. Alarcon and her children with certain essentials, including food, transportation and seeking to ensure that Mr. Polo provided funds for necessary living expenses, that assistance was not intended to induce or pressure Ms. Alarcon to decline to pursue the criminal charges against Mr. Polo. The investigators concluded that Ms. Alarcon understood she would receive assistance from the Club regardless of whether she decided to pursue the charges, and the decision was entirely up to her. This conclusion is based on several findings. A. The Timbers Provided Assistance To Ms. Alarcon Before And After The May 23, 2021 Incident. Ms. Alarcon had been receiving assistance from the Club since she arrived in the United States from Peru, which was long before the May 23, 2021 incident, and consistent with support provided to other players and their families from outside the United States. Statements to investigators made by Ms. Alarcon and Timbers personnel, and corroborating text messages, demonstrate that as early as July and August 2020, the Club assisted Ms. Alarcon in a variety of ways, including transportation to the grocery store and to doctors’ appointments, assisting her with immigration paperwork (her green card), as well as helping her renew her children’s expired passports, which involved a Timbers staff member traveling with Ms. Alarcon and her children from Portland to the Peruvian consulate in San Francisco to complete the application process. Ms. Alarcon told investigators during her investigatory interview that before May 23, 2021, a Timbers staff member was always helpful to her and her children. The investigators found that the provision of assistance to Ms. Alarcon prior to May 23, 2021 rebuts any inference that the assistance provided after May 23, 2021 was intended to induce her not to pursue the criminal charges. The Club continued to provide Ms. Alarcon assistance after the May 23, 2021 incident, which ranged from help with transportation for the children and to buy food, opening a bank account for her in which Mr. Polo deposited funds which she could use for food and other necessities, to obtaining an American phone SIM card for her. The investigators found that this assistance was specifically geared to address certain issues Ms. Alarcon was experiencing at the time as a result of Mr. Polo’s departure from the family home and her unfamiliarity with English and lack of a driver’s license. The assistance also was meant to address Mr. McCausland’s observations when 2 he was at the home on May 23, 2021 that Ms. Alarcon was isolated and the living conditions were unsatisfactory. Lastly, public reports and an email from the District Attorney’s office indicate that the District Attorney’s office ultimately declined to prosecute the case on or before June 22, 2021 because of lack of evidence. Text messages reviewed by the investigators demonstrate that the Club continued to provide Ms. Alarcon with assistance before and after the District Attorney’s decision. B. The Timbers Interactions With Ms. Alarcon, As Evidenced By The Audio Recordings She Provided, Corroborate That The Timbers Did Not Seek To Pressure Ms. Alarcon. The investigators found that no one from the Timbers attempted to dissuade Ms. Alarcon from pursuing the charges, or instructed Ms. Alarcon or her friend who was translating for her not to discuss the May 23, 2021 incident or to keep it confidential. This is supported by the May 23 and June 3, 2021 audio tapes made by Ms. Alarcon, as well as the investigatory interviews. Ms. Alarcon’s statements during her interview, the audio recordings and text messages demonstrated that the Timbers did not intend to pressure or induce Ms. Alarcon to decline to pursue a criminal case. The May 23, 2021 audio recording captured events at Ms. Alarcon’s home on that day, including discussions between her and Mr. McCausland. The investigators found that, throughout the conversation, Mr. McCausland was supportive of Ms. Alarcon and his tone was reassuring and non-threatening. The recording further revealed that Mr. McCausland made clear to Ms. Alarcon that Timbers officials (Mr. McCausland and Gabriel Jaimes, Players Affairs & Professional Development Manager) were at the home to make sure that both she and Mr. Polo were safe and to reassure her that the Club was not taking sides. Mr. McCausland explained to Ms. Alarcon that Mr. Polo would not receive greater priority than her from him because Mr. Polo is an athlete with the Club. Mr. McCausland also told Ms. Alarcon that Mr. Polo had been issued a citation and recommended that they stay away from one another. Mr. McCausland asked if Ms. Alarcon wanted to stay in the house with the children, and later made sure Mr. Polo left the family home after she indicated she wanted to stay. The information provided by the Timbers officials during their investigatory interviews was consistent with the May 23, 2021 audio recording. Specifically, they reported to investigators that they directed Mr. Polo to avoid contact with Ms. Alarcon and the children. These statements were corroborated by Ms. Alarcon in her interview, as well as by the audio recording. Mr. Polo also confirmed to the investigators that he received such instructions, and that the Timbers helped him move to a hotel. The audio recording of the June 3, 2021 meeting at Ms. Alarcon’s home with Mr. McCausland and Ms. Mascal also evidences that they did not seek to pressure Ms. Alarcon. Specifically, as reflected in the recording, the primary focus of the meeting was to discuss the assistance the Club could provide to Ms. Alarcon, and suggestions on how Ms. Alarcon could become less dependent on Mr. Polo. Though Ms. Mascal did raise the charges against Mr. Polo, and inquired as to whether Ms. Alarcon intended to pursue them, this came after discussions about how the 3 Timbers could help Ms. Alarcon, including seeking to ensure that Mr. Polo provide funds for the family. Ms. Mascal’s statement that she was “hoping” Ms. Alarcon did not pursue the charges was made after Ms. Alarcon indicated that she did not want to pursue the charges. On the recording, Ms. Mascal stated explicitly that the decision whether to pursue the charges was entirely up to Ms. Alarcon. Neither Ms. Mascal nor Mr. McCausland stated that the Timbers’ assistance was conditioned upon Ms. Alarcon’s decision not to pursue the charges. The investigators further found, based on their listening to the full recording, that both Mr. McCausland’s and Ms. Mascal’s tones were calm and respectful throughout the meeting. Ms. Alarcon’s lawyer recently published several seconds of the recording of the June 3, 2021 meeting with Ms. Mascal and Mr. McCausland. In reviewing the entirety of the recording, which is approximately 55 minutes long, the investigators found that this excerpt was taken out of context and did not accurately capture the overall substance of the meeting, as described above. While the optics of Mr. McCausland and Ms. Mascal visiting Ms. Alarcon’s home together, in a vacuum, could have created an impression of a connection between providing assistance and not pursuing the charges, the investigators concluded that the statements of Ms. Alarcon during her interview with the investigators, and the surrounding facts as described above, rebutted any implication of a connection. In addition, Mr. McCausland and Ms. Mascal each provided credible reasons for being present at the meeting. Mr. McCausland told the investigators that the focus of the meeting was to discuss the assistance to be provided, which he could assist in arranging with the Club, and that it made sense for him to have that discussion with Ms. Alarcon because he had previously met her on May 23, 2021 and had discussed assistance with her then. Ms. Mascal explained to the investigators that she had not been provided with a copy of the police report from the May 23, 2021 incident, and therefore wanted to talk to Ms. Alarcon to better understand what had happened from Ms. Alarcon’s perspective. The investigators found Ms. Mascal credible when she further stated in her interview that she was not willing to risk her law license by improperly exerting pressure on Ms. Alarcon. Lastly, every Timbers official who was interviewed was asked whether they intended to pressure or induce Ms. Alarcon to decline to pursue a criminal case. Each credibly denied having done so. C. Ms. Alarcon Understood The Decision To Pursue Charges Was Hers. The investigators also found that Ms. Alarcon understood the decision to pursue charges was entirely up to her and that Ms. Alarcon did not want to pursue a criminal case against Mr. Polo. Ms. Alarcon stated during her investigatory interview that she understood she could pursue the charges and it was up to her to decide whether to do so, and she did not intend to do so. Further, on the June 3, 2021 recording made by Ms. Alarcon of the meeting at her house with Ms. Mascal and Mr. McCausland, Ms. Alarcon said, through her friend who was translating for the group, that she did not want anything bad to happen to Mr. Polo, and did not want Mr. Polo to go to prison. 4 II. The Failure Of The Timbers To Report The May 23, 2021 Incident Was The Result Of A Lack of Understanding Of The MLS Constitution. With respect to the second question – whether the Timbers intentionally failed to report the May 23, 2021 incident and the related criminal citation to MLS in order to protect Mr. Polo or otherwise conceal the incident – the investigators concluded that the Timbers should have reported the May 23, 2021 incident to MLS. Section 3.D of the MLS Constitution requires Clubs to report to the League “any off-field personal or other conduct known or suspected . . . that may constitute a violation of the League Rules, regardless of how such information came to be known or suspected.” League Rules provide the Commissioner the authority to impose discipline for off-field misconduct, including domestic violence. The investigators concluded that the Timbers did not attempt to hide the incident from anyone, including the League. On the day of the incident, Gavin Wilkinson, the Club’s General Manager and President of Soccer, reached out to the Club’s in-house legal counsel to inquire as to whether the Club was required to report the incident. Mr. Wilkinson and the Club’s in-house counsel credibly reported that they did not know that they had a duty to report the incident under the MLS Constitution. The investigators found that the failure to report the incident to the League was the result of a lack of an understanding of the MLS Constitution, rather than an intent to conceal it. This conclusion is further supported by the fact that investigators found no evidence that the Timbers attempted to prevent disclosure of the incident. To the contrary, the incident was discussed broadly and openly within the Timbers organization. Specifically, Mr. Wilkinson told investigators that he met with Timbers staff, and separately with the players, to explain there had been a domestic incident at Mr. Polo’s home to which the police responded. Mr. Wilkinson went on to say to the meetings’ participants that the Club had zero tolerance for domestic violence and would continue to help and support Ms. Alarcon and her children. The June 3, 2021 audio recording also evidences that Mr. McCausland and Ms. Mascal encouraged Ms. Alarcon to contact the Department of Human Services (who had already visited her after the May 23, 2021 incident) and/or Catholic Charities for further assistance. All of the foregoing actions are inconsistent with an attempt to conceal the incident. Lastly, Ms. Alarcon told investigators that she never reported to anyone at the Timbers any instances of abuse by Mr. Polo prior to or following the May 23, 2021 incident and there is no evidence that anyone from the Timbers organization asked Ms. Alarcon not to speak about the May 23, 2021 incident. * * * If credible new information concerning this matter comes to Major League Soccer’s attention, the League has notified the investigators that it reserves the right to reopen this investigation. March 29, 2022 5