Law firm that worked to keep SJSU trans player eligible also cleared athlete of conspiring to harm teammate

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By Jackson Thompson
Published June 24, 2025
EXCLUSIVE: Back in November, attorney Tim Heaphy of the law firm Willkie Farr & Gallagher led a third-party investigation into allegations against San Jose State's transgender volleyball player Blaire Fleming of conspiring with an opponent to harm a teammate. Heaphy carried this out in the same month that other partners in his firm worked to protect Fleming's eligibility to compete in women's college volleyball. Heaphy later offered the school legal counsel to help it navigate a federal Title IX investigation over the same situation. The offer was declined.
Fleming, the trans athlete at the center of a national controversy last fall, was accused in a Title IX complaint and a separate lawsuit of discussing plans to have teammate Brooke Slusser spiked in the face during a game against Colorado State on Oct. 3.
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Slusser told Fox News Digital she previously had a concussion her junior year in 2023. She claims she has since made conscious efforts to avoid blows to the head out of fear of potential long-term brain damage from a second concussion.
"It could have possibly ended my career or really affected me long term," Slusser said. "Because my first concussion was so bad, sometimes just getting bonked in the head by a serve, which is not even that bad, would make me a little dizzy sometimes. So it did scare me, if I did even get another little minor concussion, how it would affect me."
Slusser was never spiked in the face during the Oct. 3 game. However, allegations brought by an SJSU teammate who claimed she witnessed Fleming conspiring with an opposing player still prompted the Mountain West Conference to launch an official investigation.
The Mountain West Conference hired Willkie Farr & Gallagher to lead the investigation, and Heaphy was assigned to lead it. Heaphy corresponded with Dustin May, University Counsel for California State University and San José State University, to coordinate interviews, as seen in public records obtained by Fox News Digital.
"The Mountain West has hired the law firm of Willkie Farr & Gallagher to conduct a review of the allegations. Attorney Timothy Heaphy is taking the lead on this investigation and is copied here," read Nov. 12 emails sent by San Jose State athletics director Jeff Konya to SJSU head volleyball coach Todd Kress and former assistant coach Melissa Batie-Smoose.
Heaphy previously served as the chief investigative counsel to the U.S. House of Representatives select committee to investigate the January 6 capitol protests.
In the same month of Heaphy's investigation into allegations against Fleming, partners at Willkie Farr & Gallagher represented the Mountain West in a request for a preliminary injunction filed by Slusser, Batie-Smoose and 10 other Mountain West women's volleyball players seeking to keep the trans athlete out of the conference tournament.
That request for a preliminary injunction was filed on Nov. 13, at which time Heaphy and May were in the process of coordinating interviews with witnesses for the investigation.
The firm's legal battle to keep the trans athlete in the women's tournament was successful, as federal judge Kato Crews, appointed by former President Joe Biden in January 2024, ruled in favor of Fleming's eligibility on Nov. 25.
Two days later, after a failed appeal by the plaintiffs, the firm posted an online press release announcing the legal victory to keep Fleming eligible to play.
But that webpage has since been deleted. Fox News Digital asked why the page no longer exists, but Willkie Farr & Gallagher did not respond to the inquiry.
Archived data shows the original press release stating, "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."
It later added, "The Willkie team was led by partners Wesley R. Powell, Matt D. Basil and Jared Bartie, and included counsel Emerson Girardeau, and associates Autumn Adams-Jack, Jacey Norris, Emma Rosen, Chloe Smeltzer and William Weber." None of the firm's attorneys have been accused of violating any applicable rules of professional conduct.
Meanwhile, Heaphy's investigation into Fleming's misconduct allegations closed just three days after Konya's Nov. 12 email to Batie-Smoose, on Nov. 15. Heaphy and May corresponded via email with at least five other witnesses, as seen in public records.
California State University redacted the identities of those five witnesses that corresponded with Heaphy and May during the investigation in the public records provided to Fox News Digital. Slusser and Batie-Smoose told Fox News Digital that they each declined to interview with investigators.
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Email correspondence between Heaphy, May, Konya and Willkie Farr & Gallagher associate Fiona Carrol repeatedly incorrectly dated the SJSU vs. Colorado State game as taking place Oct. 2, as seen in public records. The game was played Oct. 3.
A Nov. 15 letter obtained by Fox News Digital, sent by the Mountain West to both universities announcing the investigation closed without finding "sufficient evidence," also incorrectly dated the game as Oct. 2.
In the Mountain West's letter announcing the investigation closed, the conference stated "there is insufficient evidence to corroborate the allegations of misconduct," later adding, "the Conference office has determined no disciplinary action is warranted and considers this matter closed."
Slusser's attorney, William Bock of the Independent Council on Women's Sports (ICONS), responded to the conference closing the investigation in a Nov. 17 statement, calling the investigation "inadequate, and anything but thorough."
"All such evidence should be immediately and publicly disclosed along with the full written investigative report of the MWC's investigator," the statement added.
No evidence was ever disclosed by the conference, as Fleming went on to finish out the season, earn all-conference honors and even led SJSU all the way to the Mountain West championship game. The trans athlete traveled and roomed alongside female teammates to Las Vegas in the final week of November for the tournament.
Slusser previously told Fox News Digital that she and her family even had to share the same dining room with Fleming for Thanksgiving in a Las Vegas hotel on Nov. 28. That morning, the team had just learned it would advance to the conference tournament after Boise State announced it would forfeit the conference semifinal game to Fleming's Spartans, after forfeiting twice in the regular season. Boise State did not give a reason for those forfeits, but it is widely believed the players were protesting being forced to play against a trans athlete.
Fleming's collegiate career then came to a close that Saturday, Nov. 30, in a conference championship game loss to Colorado State — the same opponent the athlete was accused of conspiring with to harm Slusser, which Heaphy's investigation cleared.
Heaphy reached back out to May on Feb. 6 of this year with an offer. President Donald Trump, who had just returned to office partially based on a vow to "keep men out of women's sports," signed an executive order to try and enforce that mandate just weeks into his presidency on Feb. 5. And just one day after that, Trump's administration launched an investigation into SJSU over the Fleming situation.
"I saw an ESPN report that the Department of Education has opened an investigation of San Jose State University regarding the participation of a transgender volleyball player. I am familiar with those facts from my work for you and the Mountain West conference last fall," Heaphy wrote to May in a Feb. 6 email.
"I also do a lot of work on OCR investigations with the Dept of Ed — including a large resolution of a Title VI matter that I recently resolved with that office for the University of Washington. If you're looking for outside counsel to engage with the Dept on this matter, I'd be glad to help."
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."
The DOE's investigation into SJSU's handling of the situation involving Fleming is ongoing.
The allegations involving Fleming first came to light in a Title IX complaint filed by Batie-Smoose on Oct. 29 and were reiterated in Slusser's lawsuit against SJSU and the Mountain West.
Both documents allege Fleming and two other San Jose State players snuck out of the team hotel in Colorado the night before the Oct. 3 match, and went to the dorm room of Colorado State player Malaya Jones. Fleming is alleged to have discussed plans with Jones there to have Slusser spiked in the face during the game.
Slusser has told Fox News Digital and alleged in her lawsuit against the Mountain West and SJSU that the night before the game, one of her teammates approached her with a warning after the teammate received a text message.
"One of my teammates got a DM, basically saying that she, and then my team, needed to keep my distance from me on gameday against Colorado State, because it wasn't going to be a good situation for me to be in and that my team needed to keep their distance," Slusser previously said.
It is unclear whether the warning stemmed from Fleming's alleged plan to have Slusser spiked in the face.
When players arrived at Moby Arena for that game, there was a notable police presence, with several officers stationed throughout the venue.
And while the spike to Slusser's face never came during that Oct. 3 game, Batie-Smoose told Fox News Digital that she had suspicions about Fleming's intentions during play, before the assistant coach was ever even informed about the allegations.
Fleming led the game with 10 errors as San Jose State lost in straight sets.
"In set one, I call blocking, Blaire was not looking at me, would not even give me eye contact when [Fleming] kept setting up the block wrong, didn't follow the game plan," Batie-Smoose said.
"[Fleming] wouldn't look at me, wouldn't acknowledge me, so then I told [Kress] 'I know this is crazy, but I think that she's throwing the match and she's definitely not listening to a word I'm saying about blocking.'"
Batie-Smoose said she recalls an alleged moment at the end of the first set that prompted further concern.
"Close to the end of that set was when [Fleming] overpassed a serve right on top of the net for Malayla to hit toward Brooke Slusser, and then those two were kind of always doing eye contact and making smirks up to that point. But then when that happened, they both laughed and [Fleming] said, 'Thank you,' and that's when Blaire blew her a kiss," Batie-Smoose alleged.
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"And then I turned to [Kress] and I said, 'don't you see this interaction, this s--- that's going on?'"
By the third set, Batie-Smoose said she was so unnerved by Fleming's disobedience that she felt compelled to ask Kress when he would be taking the trans player out of the game.
"I was like, 'You would take anybody else out for a third of those errors'… but then he is literally behind my back on purpose telling [assistant volleyball coach] Julian [Abreu], 'Oh my God, this is so horrible for Blaire, all this stuff is taking such a toll on Blaire, I feel for her!' and I was just like, 'This is crazy,'" Batie-Smoose said.
Batie-Smoose claimed she then learned about the misconduct allegations against Fleming from another player on the team when the team returned to San Jose after the game.
After Batie-Smoose filed the Title IX complaint, which first publicized the allegations against Fleming, the coach was suspended from the team on Nov. 2 and did not return. She was informed on Jan. 31 that her contract would not be renewed.
Batie-Smoose's home was then vandalized with a pellet gun on the night of Feb. 10, Scotts Valley Police Department Captain Scott Garner previously confirmed to Fox News Digital. No motivation was determined.
Around the same time, Slusser fled the SJSU campus. It was shortly after the start of the spring 2025 semester, due to receiving alleged threats and harassment from other students for her stance in opposing trans inclusion in women's sports. She finished her degree from her family home in Texas.
Slusser has become a recurring speaker in her home state's legislature, advocating on behalf of bills that would grant protections for women and women's spaces from biologically male transgender people.
Meanwhile, Fleming celebrated graduation from San Jose State in a social media post in May.
Fox News Digital has reached out to the Mountain West, Willkie Farr & Gallagher, San Jose State University, Kress, Colorado State University and Jones' current school, Southern Methodist University (SMU), for a response. Jones transferred to SMU after the end of last season. No response has been provided by those parties.
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.
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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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