Executive Summary Report for SUNY

Buffalo State College Women’s Soccer

Program Review
February 2020

Christa Cook, Esq. & Robert Kirchner, Esq.

Bond, Schoeneck & King, PLLC
I. Overview of Complaint

The following represents an executive summary of findings after a review by Bond,

Schoeneck & King, PLLC (“Bond”) of the complaints relating to the Buffalo State College’s
Women’s Soccer Program (“women’s soccer team”). On or about October 29, 2019,
SUNY Buffalo State College (the “College”) received a written complaint (“October 29
complaint”) that indicates it was from twelve student-athletes who were on the 2018 and/or
2019 women’s soccer team. The October 29 complaint, which was submitted to the
College’s Director of Athletics, raised various concerns about the conduct of the Head
Women’s Soccer Coach, Nicholas DeMarsh (“Coach DeMarsh”). These concerns
included claims of inappropriate handling of health and medical issues, encouraging an
unsportsmanlike environment, favoritism and concerns that Coach DeMarsh created an
unprofessional and divisive team atmosphere. The October 29 complaint also asserted
that the foregoing conduct violated certain NCAA legislation. A preliminary investigation
was conducted by the College. On November 19, 2019, the Director of Athletics sent a
communication to the student-athletes, as well as some of their parents, regarding the
steps he had taken after investigating the allegations that were set forth. On November
22, 2019, the College received a written reply to the Director of Athletics’ November 19,
2019 communication (“November 22 complaint”) that purported to be from ten of the
student-athletes who had been identified in the October 29 complaint, as well as some of
their parents. The November 22 complaint primarily reiterated the assertions in the
October 29 complaint, although a few additional allegations were made. The College
thereafter retained Bond to conduct an independent review on behalf of the College.

II. The Review Process

Bond conducted a total of thirty-three (33) individual in-person interviews, which included
twenty-five current and former student-athletes from the 2018 and/or 2019 women’s soccer
team, the Head Athletic Trainer, the Associate Director of Athletics, the Senior Woman
Administrator/Associate Director of Athletics, the Director of Athletics, the current Assistant
Women’s Soccer Coaches and Coach DeMarsh, who was interviewed in the presence of
his attorney. Two student-athletes who were contacted for an interview did not respond to
the invitation to participate in Bond’s review. Both of those student-athletes were listed as
signatories to the October 29 and November 22 complaints. The interviews were
conducted throughout the first half of the month of December and, due to the holiday
recess, were completed in the first two weeks of January 2020.

The following documentation was provided by either the College or voluntarily provided by
interviewees during the course of the review: the October 29 complaint; written student-
athlete statements; the November 22 complaint; notes and other documents from the
College’s investigation; letters and emails from current and former student-athletes,
parents and community members; a recording of a meeting between Coach DeMarsh and
a former student-athlete; certain text messages between current and former student-

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athletes and other student-athletes and the coaching staff; recent Assessment Survey
reports for the women’s soccer team; certain individual student-athlete evaluation forms;
the Student Athlete Handbook; Code of Conduct; the Athletics Policy & Procedure Manual;
and the women’s soccer team rules. Bond reviewed this documentation and the relevant
NCAA legislation during its review.

Following the completion of the review, a detailed and comprehensive oral report was
scheduled to be provided to the College leadership with findings and legal conclusions
related to all of the issues raised in the initial October 29 written complaint, the November
22 written complaint, and other issues that were raised during the course of the College’s
investigation and Bond’s review. The College has requested a written executive summary
of Bond’s factual findings concerning the primary categories of issues that certain student-
athletes raised in the complaints.

III. Summary of Findings

a. Allegations Regarding Health and Medical Issues

The review explored several issues regarding how Coach DeMarsh handled student-
athlete injuries and other mental health and physical medical issues. The complaints
included, but were not limited to, assertions that Coach DeMarsh: discouraged student-
athletes from going to the trainer by, for example, telling a player with a concussion
“Sometimes we just shouldn’t go to the trainer;” he directed a student-athlete to participate
in a limited portion of practice and/or engage in conditioning prior to her doctor clearing her
to return to practice; commented on players’ being “unfit;” failed to accommodate student-
athletes’ dietary needs; and “diagnosed a player with anxiety and depression and strongly
suggested going on medication.”

Bond’s review did not produce any additional evidence to substantiate the allegation that
Coach DeMarsh directly discouraged a student-athlete from going to the trainer for a
concussion. That student-athlete declined to be interviewed by Bond. None of the
individuals who were interviewed by Bond indicated that they personally heard Coach
DeMarsh discourage any student-athlete from going to the trainer to seek medical
attention for a concussion. In fact, two student-athletes stated during their interviews that
Coach DeMarsh encouraged them to go to the trainer for concussions. Further, the Head
Athletic Trainer and several student-athletes stated during their interviews that, in their
opinions, Coach DeMarsh is “ultra conservative” in his response to injuries and he often
keeps student-athletes out longer than recommended by the trainer.

However, many student-athletes stated, and Coach DeMarsh acknowledged, that often he
told his student-athletes that he expected them to know the difference between being ‘hurt’
and really being ‘injured’ and that, given the short season and the risk of the trainer taking
them out of play for a few weeks, they should only go to the trainer if they were injured.
Coach DeMarsh stated that he told his student-athletes that they should “know their own
bodies” and do not need to go to the trainers if they are merely ‘hurt’ because they should

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be able to recover on their own and may be able to continue to play in a match if they get
hurt.

During the College’s investigation an allegation was raised that Coach DeMarsh directed a
student-athlete to participate in practice in a limited manner and/or to engage in
conditioning prior to being medically cleared by her physician. The evidence obtained
during Bond’s review did not provide support for this allegation.

The review revealed that Coach DeMarsh places significant attention on and discourages
student-athletes from being “unfit,” which he and a majority of the student-athletes
interviewed described as meaning not being “match fit” or “game fit” and capable of
actively playing for the duration of a soccer game, if needed. The review revealed that
Coach DeMarsh has indicated to student-athletes who he views as “unfit” that non-contact
injuries are mostly caused by being “unfit.” The Head Athletic Trainer noted that fitness is
only one of many underlying variables or causes of non-contact injuries.

The review did not substantiate the allegation that Coach DeMarsh fails to accommodate
student-athletes’ dietary needs. The interviews established that Coach DeMarsh delegated
the handling of meals and any necessary accommodations to Assistant Coach, Victoria
Colotti. The evidence revealed that Assistant Coach Colotti encouraged the student-
athletes to inform her of any specific dietary needs, invited all student-athletes to make
food recommendations and/or order from a menu, and made reasonable efforts to provide
gluten-free, vegetarian and vegan options for those requesting it.

The review revealed that Coach DeMarsh approached a particular student-athlete who
was emotionally distraught and he asked her what was wrong. After she explained to him
that she was stressed and overwhelmed and was experiencing chest pains, he shared with
her that he had personal experience with anxiety and then strongly suggested that she see
a doctor. Although Bond’s review did not substantiate the claim that he “diagnosed” this
student-athlete with anxiety or suggested that she required medications, it confirmed that
Coach DeMarsh had a number of conversations with her in which he encouraged her to
see a doctor to determine if she had a mental health condition. In their subsequent written
communications, which Coach DeMarsh produced during the review, the student-athlete
discussed the issue with him, assured him that she would update him and thanked him for
checking in with her. The complaint claims that, with respect to that same student-athlete,
Coach DeMarsh subsequently suggested that she not play soccer due to her mental
condition. Bond’s review revealed that at the end of the season Coach DeMarsh
discussed with her, as he did with all student-athletes, her physical and psychological
condition and told her that “the pressure of school, life, soccer, and really everything
seems to be eroding your enjoyment of the game” and asked her to consider whether
soccer was making her life better. Coach DeMarsh stated during his interview that he was
simply trying to get the student-athlete to really think about whether soccer was still a
productive and healthy activity for her if she was overwhelmed and/or unhappy. There is
no evidence that Coach DeMarsh consulted with or sought advice from the Head Athletic
Trainer or any other medical or mental health professional pertaining to his concerns about
the student-athlete’s mental health.

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 b. Allegations Regarding Issues of Sportsmanship

The review did not substantiate the allegation that Coach DeMarsh expressly praised and
encouraged unsportsmanlike conduct by the student-athletes on his team. This allegation
was based primarily on one specific event and a more general assertion.

In the November 22 complaint, it was asserted that Coach DeMarsh “allowed a fight to
break out on the bench…and did not address the matter.” The evidence provided during
Bond’s review established that two student-athletes engaged in a verbal argument during
one match. In response, Coach DeMarsh took them out of the match once he noticed they
were arguing on the field, condemned their conduct while they were on the sidelines and
warned them that he would send them both to the locker room if their conduct persisted.
After the match, he addressed the inappropriate conduct with the entire team and met
individually with both of the student-athletes.

In the complaint, it was asserted that Coach DeMarsh praises and encourages cursing at
referees and receiving yellow cards for dissent during matches. During Bond’s review, a
majority of the student-athletes stated that Coach DeMarsh explicitly directed them not to
curse at the referees and to avoid getting yellow cards for dissent. However, the review
revealed that Coach DeMarsh uses his discretion to decide whether a student-athlete’s
particular inappropriate conduct that resulted in a yellow card warrants being subbed out of
the match and for how long. Many of the players interviewed felt that the lack of and/or
inconsistency in consequences implicitly encouraged unsportsmanlike conduct. In
addition, the review revealed that the team had the highest number of yellow cards within
the SUNYAC conference in 2019. The review revealed, however, that Coach DeMarsh
has recently made efforts to discourage yellow cards for dissent, including a new team rule
for 2020 which provides that yellow cards for dissent will be punished by benching.

c. Allegations Regarding Favoritism & Fairness

One of the central principles underlying the complaints against Coach DeMarsh was a
belief by some student-athletes that he outwardly exhibited favoritism towards certain
student-athletes and this favoritism resulted in various incidents of him not only having
favorites but playing favorites with respect to issues such as attention during practice,
performance expectations and consistency and uniformity in the application of his rules.

Coach DeMarsh admits to using the term “favorites” with respect to some of the student-
athletes on the women’s soccer team. He stated that he intentionally uses this term as a
form of motivation and the meaning of the term “favorites” is those who “get the job done”
and “work the hardest.” He stated that his favorites are those who put in sufficient effort
and treat him and the rest of the coaching staff with respect. Although during the College’s
investigation he agreed to the Director of Athletic’s directive to stop using this word, during
Bond’s review Coach DeMarsh insisted that this is a good coaching technique and
explained that he adopted the use of the phrase years ago from another coach, who was
one of the winningest coaches at the College. Coach DeMarsh suggested that by referring

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to a select number of student-athletes as his “favorites” he is motivating others on the team
to work harder to gain the coaches’ approval and a starting position. However, the review
revealed that several of the student-athletes, including some starters, interpreted his use of
this term as an indication of deliberate preferential treatment in which he failed to meet his
professional obligation to strive for fairness to all student-athletes who he has an obligation
to coach.

The reason why some of the student-athletes felt this way, rather than being motivated to
become a “favorite,” is based on a few instances in which a number of the student-athletes
believed that Coach DeMarsh lacked an evenhanded and impartial approach. For
instance, in the Fall of 2019, Coach DeMarsh failed to follow his long-standing ‘you score
you start’ rule, which the weight of the evidence suggests existed in 2019, when one of the
second-string student-athletes scored a goal but was told during the next game’s line up
and in front of the entire team that she would not be starting because “he makes the rules.”
During Bond’s review, Coach DeMarsh stated that he simply wanted to put his best players
on the field and she was not one of them. Many of the student-athletes felt that Coach
DeMarsh’s decision not to uniformly apply his ‘rule’ was unfair, while some of the regular
starters felt that, as the coach, he was justified in deciding how and when to apply his own
‘rules’.

In addition, several student-athletes stated that he treated them unequally based upon
their importance to the starting line-up and only valued a small number of players on the
team. During the College’s investigation, Coach DeMarsh used the term “practice players”
and insisted that several of the student-athletes who complained were not good enough to
be on the team and should have been cut from the start. In response to Bond’s inquiries,
Coach DeMarsh was unable to provide any examples of what he does to make the least-
skilled player feel valuable to the team. Many of the student-athletes interviewed
suggested that Coach DeMarsh’s outward use of the term “favorites” along with certain of
his decisions that seemed unfair caused them to feel frustrated and alienated from the rest
of the team and that it diminished their self-confidence, resulting in several of them quitting
the team.

d. Allegations Regarding Leadership & Team Culture

One of the other general principles underlying the complaints against Coach DeMarsh was
an assertion by some student-athletes that he created a divisive atmosphere within the
team. For instance, a number of student-athletes stated he was not approachable, treated
players who were not his “favorites” disrespectfully and pitted them against each other,
and, on one occasion, threatened to get rid of all of them before he ever loses his job.

With respect to the latter, the review revealed that Coach DeMarsh yelled and cursed at
the team during a halftime speech and told them that he had a son to provide for and they
could go to their parents or the Director of Athletics, but he would get rid of all of them
before he loses his job. The review revealed that the very next day, without providing
specific details about his conduct, Coach DeMarsh informed the Director of Athletics that
he had lost his temper and been overly critical with his team and that the Director of

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Athletics told him to apologize to the team. Later that same day, Coach DeMarsh told his
team that he had reviewed the film of the match and they had not played quite as bad as it
appeared to him during the match. During the College’s investigation, Coach DeMarsh
acknowledged that he had become increasingly concerned about his own professional
career at the College, got frustrated with the team’s performance and made threatening
comments that he should not have made to his team. During Bond’s review, Coach
DeMarsh also acknowledged that he had told the team on more than one occasion that
their performance was critical to his livelihood and that he was a single father with a son to
feed and that he did this in order to further motivate the team.

The review substantiated the allegation that Coach DeMarsh cut a student-athlete from the
team in Spring 2019 for being “toxic” very shortly after the team had awarded her the team
player award for her positive attitude and supportive role within the team. None of the
student-athletes who were interviewed by Bond felt that this student-athlete who was cut
was “toxic” in any way and adamantly stated that she was the team cheerleader and was
very positive and supportive of everyone on the team. The assistant coaches stated,
during Bond’s review, that they never personally observed nor had any student-athletes
informed them of this student-athlete causing drama, contradicting Coach DeMarsh or
“stirring the pot.” During the interviews, Coach DeMarsh stated that his decision to cut this
player was due, in part, to her lack of skill and the fact that he had heard from another
individual that she was “stirring the pot,” talking badly about him and supporting others on
the team who felt he was treating them unfairly. During Bond’s interview, Coach DeMarsh
could not recall who shared this information with him, but confirmed that it was one
individual. Coach DeMarsh stated that he also relied on information from another individual
not associated with the College who had no knowledge pertaining to the student-athlete’s
participation on the College’s women’s soccer team.

Another significant area of concern raised in the complaints was the way in which Coach
DeMarsh communicated with student-athletes in individual meetings, both with respect to
their value to the team and his response to criticism of his coaching. For example, the
review revealed that Coach DeMarsh spoke to the team, first in a team meeting and later
in individual meetings, about comments made in the anonymous annual assessment
survey that were critical of him and accused him of playing favorites and being unfair.
Coach DeMarsh said that he felt some of these comments were highly inappropriate
because student-athletes named specific teammates to make their point and he believed it
was unacceptable to call out teammates in this way. He stated that he also felt the need to
call out and stop what he referred to as some student-athletes’ “victim mentality.” The
review revealed that the tone of his discussion with the starters was noticeably different
than the manner in which he addressed the annual survey comments in the individual
meetings with many of the non-starters. As a result, although Coach DeMarsh denied
attempting to determine who made the critical comments in the anonymous survey and
there is a dispute over whether he expressly asked some student-athletes if they made
particular comments, it is likely that his statements in the individual meetings led some of
those student-athletes to believe that he was attempting to determine if they were the
source of certain comments.

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Bond’s review also revealed that in his meetings with individual student-athletes who were
regular starters he discussed their personal performance, watched film of their games and
focused on the development of their personal skill sets. However, in individual meetings
with other student-athletes, particularly the student-athletes who did not start, he talked
about other student-athletes in both a positive and negative way without any obvious
connection to the individual with whom he was meeting. He also confronted student-
athletes who were not starters about rumors that some team members were cheering for
the opposing teams, that some team members were talking about him behind his back
and/or what other team members were saying about the skill level of the student-athlete
with whom he was meeting. Although Coach DeMarsh stated these conversations were
intended to either motivate players to fight for a starting position or to counter drama within
this portion of the team, several student-athletes stated that these discussions suggested
to them that he was instigating drama and denigrating players.

e. Allegations Related to NCAA Violations

The complaints allege that events discussed above resulted in violations of several
provisions of the NCAA Division III Constitution. During Bond’s review, some of the
student-athletes whose names are on the complaints stated that the complaints were
drafted with reference to these NCAA provisions in the hope that it might gain more
attention from the College.

During Bond’s review, the College’s Associate Athletic Director/NCAA Compliance Officer
stated that after reviewing the October 29 complaint and participating in the preliminary
investigation, he concluded that the alleged conduct did not rise to the level of NCAA
violations. He stated that, even if the allegations pertaining to Coach DeMarsh’s conduct
were true, it would not constitute any NCAA violations and, at most, would establish that
Coach DeMarsh may have created an environment that is inconsistent with the principles
and the ideals set for intercollegiate athletics teams. In addition, an individual employed
within the SUNY system familiar with NCAA legislation, reached a similar conclusion.

Based on its review of the allegations in the complaints, Bond agrees with the actions and
conclusions of the College’s Compliance Officer and finds a lack of substantial, credible,
and persuasive evidence that any NCAA Division III legislation was violated.