OTL: Court case details funding sources for softball team that paid first million-dollar contract

Houston's Scrap Yard Dawgs won the 2017 NPF title and withdrew from the league months later. That withdrawal is now the subject of a lawsuit that is probing the finances of the team's owner, Joel Bartsch. Courtesy Jade Hewitt

THE PROFESSIONAL SOFTBALL team owner whose franchise offered the sport's first million-dollar player contract has funded his endeavors by abusing his position as director of a Houston science museum, filings in a federal lawsuit allege.

Joel Bartsch, owner of the former National Pro Fastpitch league's Scrap Yard Dawgs, is also accused of working with USA Softball, the sport's governing body, to improperly influence which players are selected for the U.S. national teams. Bartsch, through his attorneys, disputes all the allegations.

National Pro Fastpitch sued Bartsch in January 2018 in the Northern District of Ohio over his decision to leave the league and for his involvement with the renamed Scrap Yard Fast Pitch team.

The Scrap Yard Dawgs made headlines in 2016 by signing Olympic silver medalist Monica Abbott to a $1 million contract, the most lucrative deal paid by an individual American professional franchise to an active female athlete in a team sport. The renamed squad continues to play as an independent, barnstorming team and recently had eight players, including Abbott, named to the U.S. women's national team.

The league's lawsuit alleges Bartsch violated a non-compete agreement because he left with the intention of starting a new professional league in coordination with USA Softball. Bartsch's attorneys have disputed those claims, stating in part that plans for the new league never materialized and that Scrap Yard Fast Pitch is operated as an independent team with no financial harm to the NPF.

The judge last year denied the league's preliminary request to stop Bartsch's softball ventures and noted that "NPF has not carried its burden that there exists a substantial likelihood that it will prevail on the merits."

But beyond the core contract dispute are depositions in the case that reveal details about how Bartsch has funded the Scrap Yard Dawgs and secured money and support for USA Softball. Testimony to date indicates Bartsch, president of the Houston Museum of Natural Science, requested museum contractor -- and longtime friend -- Paul Bernhard to make millions of dollars in payments to three softball-related entities.

In a court filing on Feb. 5, 2019, the league alleges that Bartsch awarded Bernhard and his company contracts to design and build museum exhibits, and in return, "Bernhard pays for Bartsch's personal endeavors, including the development of a women's softball league to compete directly with NPF in violation of the Parties' Non-Compete Agreement and Franchise Agreement."

Some of the funds from Bernhard went to the league to "settle debts owed, including the payment of player contracts," one plaintiff filing alleges.

Bartsch, 57, said Monday that "no quid pro quo exists" between him and Bernhard.

"At the end of the day, my friendship with Mr. Bernhard is decades old and pre-dates any dealings with NPF, women's softball, and the Museum. That friendship is separate and apart from any professional dealings of the Museum," Bartsch wrote in an email sent by an attorney with the firm representing both Bartsch and Bernhard. The same law firm also represented the museum and its board chairman during depositions. Although Bernhard is not a party to the lawsuit, he was deposed by the league's attorney as part of the proceedings.

In a separate email to ESPN, Bartsch's attorney, Yazan Ashrawi, wrote that NPF hasn't been able to prove that the league or any of its remaining teams was financially harmed by Bartsch's decision to pull the Scrap Yard Dawgs, and as the league "continued to lose on the merits [of the lawsuit], it seemed to turn its attention to merely harassing Mr. Bartsch and the other Defendants."

In responding to questions from Outside the Lines, Bartsch also noted that both NPF commissioner Cheri Kempf and league attorney Tracy Warren have worked for ESPN. Kempf is a seasonal contract employee who provides commentary on NCAA softball games; Warren, a former college softball player, has worked as a freelancer for the network.

"It is sad to see your colleague Ms. Kempf burning every women's softball bridge she can all because of personal vendettas and all at the expense of the players and the sport," Bartsch wrote.

ESPN had an agreement to carry NPF games in 2018, but that deal expired. The network is in the middle of a four-year agreement with USA Softball to carry the International Cup, which replaced the World Cup of Softball beginning last year.

BERNHARD SAID UNDER oath in a December 2018 deposition that his design and consulting firm was paid about $31 million for its work on a new, 30,000-square-foot museum wing at the Houston Museum of Natural Science that highlights oil field technology. The wing opened in fall 2017.

Bernhard also said he has provided what could be as much as $9 million of financial support to organizations involving softball at Bartsch's request. He said he started making those payments sometime between 2013 and 2016 but couldn't be more specific. He denied any quid pro quo for museum contracts.

Bernhard sent money an estimated 10 times to softball-related entities on Bartsch's behalf without researching the recipients or knowing anything about how the money would be used, he said. He said he doesn't follow softball, and the only game he has ever watched was one in which Bartsch's daughter played.

He gave money to Bartsch's softball interests because he trusted his friend, he testified. Bernhard also said Bartsch advised him in the buying and selling of minerals and artifacts through a separate company they formed.

"I've known him for many years," Bernhard said in his deposition. "We do business together as friends, on trust, on a handshake."

Bartsch, who has worked at the Houston museum since the early 1990s and whose compensation was listed at more than $293,000 in 2016, said in the email that Bernhard's company is a "nationally and internationally recognized leader in the area of museum exhibit design and construction," and that, "Mere friendship does not create a conflict of interest where there is otherwise an arm's-length, fair transaction between businesses."

The Internal Revenue Service advises agencies to have a conflict of interest policy, but those conflicts usually relate to familial relationships, not friendships, said Matt Viola, a vice president with Charity Navigator who reviewed the museum's tax filings for Outside the Lines. He said IRS rules require nonprofit organizations to list their top contractors, but doesn't dictate how they're to be chosen. On the museum's 2016 IRS filing, Bernhard was listed as the museum's highest-paid contractor that year, having received $18 million in business. Bernhard did work for the museum for almost 20 years, the latest project being the renovation of Wiess Energy Hall. He has discussed another multimillion-dollar contract with Bartsch and other museum officials for a chemistry exhibit hall, according to his deposition.

In another deposition from October 2018, T. Mark Kelly, board chairman for the museum and chairman of a major law firm, Vinson & Elkins, said he was not aware of the board ever having approved a contract with Bernhard, and he could not recall ever having heard his name.

Kelly did not respond to email and voicemail messages from Outside the Lines.

Bartsch did not answer questions from Outside the Lines about whether he alone selected Bernhard's company for the projects or if he sought other bids. He said his friendship with Bernhard was no secret and that Bernhard was "well-known to many decision-makers at the Museum." He wrote that any assertion that his and Bernhard's dealings together with the museum involved the NPF were "completely unsubstantiated and baseless."

Outside the Lines shared several records from the case, including depositions, with Daniel Stein, an attorney with Mayer Brown in New York and former chief of the criminal division in the U.S. Attorney's Office for the Southern District of New York.

"That a substantial vendor of a not-for-profit institution appears to have made large payments and/or charitable contributions for the personal benefit of the nonprofit's president and CEO is a red flag," Stein wrote in an email.

IN ONE EXAMPLE of the transactions, Bernhard testified that he wired $250,000 at Bartsch's request to USA Softball in September 2017. USA Softball executive director Craig Cress, also during a deposition, said that he received the funds and later sent half of the money to Bartsch. A copy of the wire transfer record shows Bernhard's name and address as the originator, and near the bottom states, "Other Payment Info: BARTSCH."

Cress said Bartsch wanted USA Softball to use half of the $250,000 to start a professional softball league, while the other half was a donation to USA Softball. The $125,000 designated for the new league was returned to Bartsch because the effort to form the league was not moving forward by the end of 2017, Cress said. In January 2018, USA Softball backed away after it became aware of NPF's legal objections to Bartsch's plans for a new league, Cress said in an interview with ESPN.

In that interview, Cress said he supported the formation of the new professional league as a means to promote the sport and create more opportunities for women to play, and he said audits of his organization's 2017 financial transactions found nothing improper. Last month, attorneys for NPF summarized their allegations in letters, along with copies of selected records, to the Internal Revenue Service, U.S. Olympic Committee and to attorney general offices in Ohio, Texas, Illinois and Oklahoma -- states with connections to the league, the museum or USA Softball.

"Through the course of litigation, several troubling facts and pieces of evidence have been unearthed which warrants attention of federal and state authorities," NPF says in its five-page letter to Texas Attorney General Ken Paxton. The letter detailed the transactions among Bernhard, USA Softball and Bartsch.

The IRS did not respond to questions about the letter. The Texas attorney general's office declined comment; the others acknowledged having received the letter and noted they were reviewing the information. A spokesman for the USOC told Outside the Lines that it has received the letter and was "working to understand how the information impacts USA Softball." One other item the NPF attorney included in the letters: Bernhard had an American Express account of which Bartsch, Bartsch's adult daughter Caitlin Bartsch and Scrap Yard Dawgs general manager Connie May had unrestricted use. Bernhard said he paid the bills, which he estimated to be $1 million to $2 million a year.

Kempf, the NPF commissioner, said that from a softball perspective she is most troubled by evidence, including text messages among Cress, Bartsch and May, showing correspondence about the formation of a new league dating to August 2017.

"[Softball's] national governing body was plotting and planning to undermine the only professional level of this sport that exists in this country. We were celebrating our 15th year last year," Kempf said. "It was a complete and utter shock to find out they were involved, and especially to the degree that they were involved."

Court filings in the lawsuit allege that Bartsch gave USA Softball about $80,000 to $100,000 in benefits for the U.S. national team training camp, including facilities, transportation and hotel rooms. The league also alleges that May had improper access to and influence with USA Softball's selection committee at tryouts.

"Two-thirds of the athletes suggested by May were not only invited to the tryouts, but actually made the U.S. National A and B Teams," one court filing states. "Conversely, several of NPF's award-winning athletes were not selected for these teams."

USA Softball filed a request for a protective order in the NPF court case to block Warren from deposing and demanding documents from two selection committee members, stating their work wasn't relevant to the contract dispute. The judge agreed.

In his interview with ESPN and in his deposition, Cress defended the selection process and denied any favoritism, saying that the tryouts were in a public venue and everyone had equal access to committee members. He also said it's not uncommon for interested parties to offer their input on the selection process, nor for USA Softball to accept in-kind donations. He said 18 of the 36 U.S. national team members were current or former players in the NPF. Cress shared with Outside the Lines an email he sent to Kempf asking for details of any allegations of interference so he can look into them, and he has not received a response.