June 26, 2010 Thank you Chris DeSantis for your thoughtful, and thorough, inputs. Streamline's comments are also in the interests of fairness to ask: how could this have happened and what could have been avoided? Fair questions to ask considering the gravity of the victim's life damaging experiences.

There is one sentence in the article Chris linked which I get stuck on, it is:

"Her accusations, made in a Jan. 24, 2006, e-mail to USA Swimming, led to his resignation under a confidential agreement three days later."

I've left a firm where I was a partner earlier in my career and signed a pretty robustly detailed confidentiality, mutual release, non-solicit / non-compete, no disparage, etc. agreement. These things can take a life of their own and run dozens of pages in small fonts edited then re-edited by attorneys. It's generally in the mutual best interests for all the parties in a business divorce to mutually agree to part ways cleanly and leave nothing unresolved, and most important legally bind both parties not to throw mud at each other without recourse for those actions. Even if a parting of the ways in business is amicable, these agreements still get executed because the reality is each of the parties are likely to continue in that business as competitors. Disclaimer: I DO NOT portend to be expert here given one experience in the matter, but have a few comments based on this experience to contribute.

Uchiyama resigned under what I would guess is a mutual confidentiality agreement written in a very lawyerly way which basically says both parties will pledge to keep the details of the separation private (even if asked). Further it might have involved mutual non-disparage language so that the two parties involved would have some recourse for the other behaving badly and trashing the other which would then damage the other's interests. Now, I'm also not supporting Uchiyama's rights or best interests here but in a world of written legal agreements agreements that support the interests of one party - the boss who sleeps with the intern, the coach who sexually abuses a minor, the employee who took drugs or mishandled proprietary employer data, whatever - ill behaviour can be rewarded with a parting of ways agreement that protects what occured under confidentiality. Happens all the time.

From the articles contents, the victim is now a woman in her 30s. This started when she was 14 years old. We're looking backwards now to the earlier part of the 1990s. She clearly did not receive or was discouraged, misinformed, intimidated, etc. away from legally pursuing this matter against Uchiyama within a period of time where it was within her legal statute of limitations window to have done so. Two tragedies on the board: the unspeakable emotional and psychological damages done to a human being and the missed opportunity to have righted a wrong via the legal system.

Next a third tragedy builds...she emails contents of Uchiyama's malfeasance from many years earlier to USA Swimming in 2006. Within days Uchiyama is gone with a signed confidentiality agreement. That's all. No further questions please.

USA Swimming was in a tight and panicked spot right there. Can't call the police or report to other authorities what happened a decade and some earlier. Can't do anything but fire the guy. I'm guessing they said resign or be fired, and Uchiyama then called a lawyer. And unless Uchiyama hired the dumbest attorney ever admitted to the bar, that attorney then informed USA Swimming if they fired him for cause because of alleged wrongdoings under someone else's employ beyond the boundaries of the statute of limitations on a matter where he was never legally tried and found to have been guilty of wrongdoing....well then, that would be a very nice and easily winable lawsuit against USA Swimming filed straight away. Now USA Swimming might have seen themselves as stuck under some duress to get rid of this guy close to immediately any way possible. Uchiyama's lawyer writes up one of those exhaustive mutual separation, release of liability, confidentiality, pledge to not disparage agreements and tells USA Swimming he'll resign if they sign it. Oh and also pay Uchiyama for unused vacation or whatever consideration. It's revolting but smart lawyering. USA Swimming (after throwing up some in mouth) signs it to get this guy out of the building and done fast. That's a bad trade off potentially made by USA Swimming, but was the road to travel to get rid of the guy.

That's just a guess, but also a predictable path IF the path was to get rid of Uchiyama with a shotgun agreement.

In my opinion, it is nauseating that USA Swimming would execute such an agreement without some reflection as to the FURTHER DAMAGE which would ensue if Uchiyama were to gain employ in another position

Now the questions begin:
1. Someone calls USA Swimming for a reference, is it fair to be critical of those who remained at USA Swimming for not bashing Uchiyama or even revealing why he left while sworn under an agreement to not do so? My understanding is that sometimes even a neutral reference (we can confirm he worked here from this year to that year and that he is no longer here as of this date) can be constructively interpreted as a negative reference.
2. With no legal footing whatsoever to stand on to speak the truth now, what did USA Swimming bargain away in 2006 with that shotgun confidentiality agreement? Not sure we'll ever know...that's why it's called a confidentiality agreement.
3. WHO AT USA SWIMMING SIGNED THAT CONFIDENTIALITY AGREEMENT IN 2006?!?!? USA Swimming is the governing body and lighthouse for the sport of swimming in the United States at the youth through the elite levels. As noted by others it is a non-profit with financial resources provided by members of the organized swimming body in the United States. Parents write those membership dues checks and have 14 year old girls and boys in this sport today who DESERVE an unwavering committment by the leaders of the sport to protect the interests of those children.

We can be angry about a lot of things, and that will take us nowhere in substance now. What we can do is identify who at USA Swimming deemed it appropriate to do a shotgun confidentiality agreement in 2006 instead of taking the harder road traveled and constructively fired Uchiyama for cause regardless of legal counter threats or financial risks for doing so. At a minimum, this sport is owed back at least that much by it's leadership.
Submitted by: outside smoke

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