Mountain West addresses controversial revelations of SJSU trans athlete's misconduct probe
Fox News Digital reported in June that the conference hired the law firm Willkie Farr & Gallagher (WFG) to investigate allegations against Fleming of conspiring with an opponent to harm teammate Brooke Slusser in November. The same firm defended the Mountain West against a request for a preliminary injunction that would have ruled Fleming ineligible to compete in women's volleyball in that same month.
Fox News Digital questioned Nevarez at her Mountain West Media Days press conference on the issue, asking "In November, the Mountain West launched an investigation of misconduct into a San Jose State volleyball player. Why did the conference hire the same law firm that was hired to defend the player's eligibility in court to conduct that investigation, and was there any concern of a conflict of interest?"
Nevarez responded, "Well, that is a question concerning active litigation, so I'm not going to comment on ongoing litigation. But the statement that the same law firm represented the school in defending the player is incorrect."
Fox News Digital asked, "Why is it incorrect?"
Nevarez responded, "Because, that's not, that, the lawyer that did our investigation was not representing San Jose State." Fox News Digital did not insinuate in its question nor has it ever reported that the law firm represented San Jose State.
Fox News Digital immediately followed up during the press conference, saying, "It was representing the Mountain West to defend the player's eligibility in court." Nevarez did not respond, remaining silent for several seconds.
Fox News Digital then asked, "Are you confident in your legal defense?"
Nevarez responded, "Um, yes."
Fox News Digital attempted to question Nevarez about her response shortly after her press conference ended as she spoke with other reporters, but she ignored the inquiry and walked away. A Mountain West media relations associate said, "Sir, we have to get to another interview."
The Mountain West later provided its statement that claimed Nevarez "believed" the initial question was asking about the law firm representing SJSU.
"Commissioner Nevarez believed you were asking about our law firm, Willkie Farr & Gallagher, representing both the Mountain West and San Jose State. It was clarified that you were asking about a potential conflict of interest with the lawsuit related to a conference policy and the match investigation," the statement read.
The statement also claimed that WFG did not defend Fleming's eligibility in the November legal dispute.
"To be clear, Willkie Farr & Gallagher is defending the Mountain West's policy regarding forfeitures, not a student-athlete's eligibility. Eligibility is determined by NCAA policy and the university, not the conference office. The investigation was focused on alleged player misconduct. The two matters in question are unrelated and thus there is no conflict of interest."
Four conference opponents forfeited games to SJSU in 2024, and the status of the forfeited matches and the impact of conference seeding was challenged in the request for preliminary injunction. However, Fleming's eligibility to continue the season and play in the conference was challenged as well as a key point.
WFG deleted a Nov. 27 press release from its website announcing the firm had secured a legal victory for the Mountain West against the plaintiffs, led by Slusser, seeking to keep the trans athlete out of the tournament. The page is still viewable via online archives and notes the athlete's right to play as the first issue in the dispute.
"Willkie secured a high profile win for collegiate athletic conference Mountain West Conference in a suit brought by members of San Jose State University's women's volleyball team and other Mountain West teams that played against SJSU. The suit sought to (i) prohibit a transgender woman on the SJSU team from competing in the MWC's Championship," the press release read, later stating "Plaintiffs sought an order preliminarily (i) blocking the player at issue from playing in any remaining matches this season."
The press release also directly referenced the Mountain West's own gender eligibility policy.
"The court noted the player in question has played for SJSU since 2022, and that Mountain West's policy on transgender athletes has been in place since 2022."
The WFG attorneys that represented the Mountain West argued against the request for a preliminary injunction as a whole, and made no clear distinction not to challenge the plaintiffs' request to have Fleming ruled ineligible.
"Preliminary injunctions are an extraordinary remedy only granted in true emergencies. The moving plaintiffs should not be granted such an extraordinary remedy based on the fabricated sense of urgency created by their decision to hold onto their grievances until the eve of this year's conference tournament," read the Mountain West's response brief to Slusser's complaint.
Slusser and the other plaintiffs argued in their complaint that "Fleming has been continuously ineligible to play women's volleyball pursuant to Title IX as Fleming's sex is male and is therefore ineligible to play in, and should not be permitted by the MWC to play in, the MWC women's volleyball tournament."
The lead attorney who represented the Mountain West in November, Wesley R. Powell, repeatedly insisted that the Mountain West is not subject to Title IX, as seen in transcripts of the November hearing obtained by Fox News Digital.
"Our position is that we're simply not subject to Title IX," Powell said during the status conference. "To be subject to Title IX we would have to be recipients of federal government support and the conference is not a recipient of any such support. And so from our perspective, all of the details, the expert testimony, you know, virtually everything that has been put into the record is ultimately irrelevant to us."
During oral arguments, Powell said, "It's only a Title IX issue if the Mountain West receives federal funds, and that is not the case."
Fox News Digital reached back out to the Mountain West and to WFG for a response to the presentation of these facts as they relate to the conference's statement. No response has been provided. None of WFG's attorneys have been accused of violating any applicable rules of professional conduct.
Slusser previously alleged in a bigger lawsuit against the Mountain West, signed by 10 other current or former women's college volleyball players, that Fleming and other teammates snuck out the night before an Oct. 3 game against Colorado State and met with an opposing player.
The lawsuit, and a separate Title IX complaint filed by former SJSU coach Melissa Batie-Smoose, alleged that the teammates who snuck out with Fleming allegedly later told players and coaches of an alleged plan by Fleming, in conspiracy with the Colorado State player, to have Slusser spiked in the face during the game.
The lawsuit and complaint alleged that the players who snuck out told other players and coaches that they saw Fleming also hand over an SJSU scouting report, with an agreement to throw the game in Colorado State's favor.
Slusser was never spiked in the face during that game. Fleming led the game in errors with 10, as San Jose State lost in straight sets.
The Mountain West Conference investigated the allegations in November, but concluded that "sufficient evidence" could not be found.
Public records obtained by Fox News Digital show that the lead WFG attorney in the investigation, Tim Heaphy, coordinated with SJSU and California State University legal counsel Dustin May to set up interviews with at least six witnesses. SJSU head volleyball coach Todd Kress was one of the witnesses.
California State University redacted the identities of the other five witnesses that corresponded with Heaphy and May during the investigation in public records provided to Fox News Digital.
Emails coordinating interviews for the investigation, obtained by Fox News Digital, repeatedly incorrectly stated the game took place on Oct. 2. A letter announcing the investigation had closed without finding sufficient evidence was sent just three days after May and Heaphy's first emails to witnesses to set up interviews were sent. That letter also incorrectly dated the game Oct. 2.
In February, Heaphy reached back out to May offering legal counsel in navigating a federal Title IX investigation into the situation over the trans athlete, as seen in emails obtained by Fox News Digital. May responded on Feb. 18, declining Heaphy's offer. Heaphy responded the next day, writing, "Please let me know if we can help in any way on this or other issues."
May's office initially responded to Fox News Digital's request for comment after providing the public records, requesting a list of questions and background information be provided before speaking. Fox News Digital did not provide the information or list of comments, and requested a virtual or phone interview.
May's office then responded with the statement, "Any speculation that the firm or attorney mentioned in your inquiry represented SJSU or the CSU is unfounded." Fox News Digital had not posed that question or any other stipulation, only an interview request, at that point.
Fox News Digital later followed up with May's office requesting an interview to address other questions, and fulfilled his office's request to provide background information on what would be discussed.
May's office responded saying, "He will not be available," and has not responded to request for further comment.
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This would be a different story if I regained my former life, complete with my former mind. I didn't. Eighteen years post-accident. I still think with a stutter, speak with a limp, and have less usable space in my brain, so I run out of memory fast. Today I had two coins in my hand. One was a dime and one was a nickel, and I didn't know which was which. I can spackle all I want but underneath I'm still broken. I frustrate others by leaning on them and by not leaning on them, and baffle them when I seem normal and when I don't. It takes decades to build a life, and seconds to destroy it. The next time someone warns you to be careful when driving home from a night out, don't roll your eyes. Heed their warning. Disabled people are the single largest minority in the world, and likely the least heard from. We are also the only minority anyone can join at any time. Trust me, you won't want to be disabled — or to take someone's life. Judith Hannah Weiss freelanced for 25 years, writing print and broadcast promotion for New York, The New Yorker, Vanity Fair, Vogue and other major media. In 2006, she was hit by a drunk driver, which put things on a long pause. Her post-accident work has appeared on NBC News and in The Washington Post, The Oldster, Iowa Review, The Rumpus, Dorothy Parker's Ashes, Memoir Monday and The Pulse. You can find her on Substack at and at This article originally appeared on HuffPost in April 2024. Also in Goodful: Also in Goodful: Also in Goodful:
