The former girlfriend of Tiger Woods shared several clues in recent months that suggested the famed golfer had engaged in sexual harassment against her, including a form filed by her attorney in March that said her case against Woods involved “sexual abuse.”
But any details to support those clues were never fully revealed and now might never be after a state judge in Florida late Wednesday ordered their dispute to be resolved in private arbitration proceedings instead of public court.
In her ruling, Judge Elizabeth Metzger essentially said that the attorney for Erica Herman laid out a weak case and failed to “provide factual specificity for any claim relating to sexual assault or sexual harassment.”
So what happened? A now what?
The case isn’t quite over, though the judge’s ruling gave support to the notion that this was all a leverage play by Herman for a financial settlement, according to an attorney who has been following the case but is not involved in it.
Live Leaderboard: PGA Championship Tournament Scores, Schedules, Pairings and More
“It certainly seems that she’s grasping at straws and trying to come up with a claim to avoid arbitration,” said Ryan Saba, a California civil trial attorney whose experience includes sexual abuse and women’s rights cases. “The only reason she’d want to avoid arbitration is because she wants to air whatever dirty laundry she has against Tiger outside the scope of a confidentiality agreement. Then she’d be trying a case in the court of public opinion.”
What’s next?
Herman’s lawsuit against Woods will be resolved through confidential arbitration proceedings in accordance with the non-disclosure agreement (NDA) Woods’ attorney said they signed in 2017. Judge Metzger ordered this Wednesday after Herman sued Woods in March to be released from that NDA – a contract that required her to keep details of their private life confidential and to resolve any disputes between through such arbitration.
To get out of the NDA, her attorney, Benjamin Hodas, tried several strategies and even cited two new federal laws that basically invalidate NDAs and forced arbitration agreements in cases of sexual harassment or assault.
But Metzger said there wasn’t enough to support that, especially under the federal Speak Out Act, which was established last year to stop sexual predators from using NDAs to hide their abuse.
“Herman cited the federal Speak Out Act within the Complaint,” Metzger noted in a footnote to her ruling. “But her counsel acknowledged that he had no facts to present to the Court as to its applicability.”
What did Erica Herman want?
Herman never married Woods but had a relationship with him since about 2015 until October, according to court records. Their messy breakup then led to this litigation, which began when Herman filed a lawsuit in public court against the trust that Woods established for his mansion on the Treasure Coast of Florida. She claimed more than $30 million in damages in that lawsuit, saying she was kicked out of the house in violation of an oral tenancy agreement she claimed to have to live there five more years.
Woods’ attorney said no such agreement exists, but that lawsuit, filed in October, remains pending in the same state court. The problem for Herman is that this lawsuit might be subject to the same disputed NDA and forced arbitration agreement, with a decision about that pending from the same judge.
That judge is “not going to make inconsistent rulings,” Saba said.
After suing the trust, Herman filed her lawsuit against Woods in March, hoping that judge would release her from the NDA so she could disclose more information. It didn’t work. Woods’ attorney, J.B. Murray, previously stated his theory on Herman’s motivation.
“By suing the Trust over conduct taken by Mr. Woods and his agents following the breakup, Ms. Herman seeks to flout her obligation to resolve all disputes with Mr. Woods in a confidential binding arbitration,” Murray wrote in a court document filed in December. “Instead, in the context of litigation and the publicity that is likely to follow, Ms. Herman improperly seeks to leverage a payment from Mr. Woods in an amount that no arbitral forum would ever award.”
What clues did Erica Herman leave about sexual harassment?
There were several vague references from her attorney at first. When Herman filed suit against Woods on March 7, her attorney filled out a cover sheet that asked him, “Does this case involve allegations of sexual abuse.”
Hodas answered yes.
He then asked the court to declare the NDA unenforceable under the Speak Out Act and a similar federal law entitled the Ending Forced Arbitration of Sexual Assault and Sexual Harassment (EFAA).
He didn’t go into further detail until May 5, when he filed a document that said Woods pursued a sexual relationship with Herman when she worked for him as an employee at his restaurant in Florida and then forced her to sign an NDA about it or be fired.
But the judge noted that Herman “has only made vague and threadbare references to behaviors or actions she contends constitute sexual harassment within her Response filed on May 5.”
Why didn’t she go into more detail?
Hodas didn’t return a message seeking comment. He said in a hearing in front of the judge on May 9 that he couldn’t go into more detail because of the NDA.
“There are disputes, and we are not going to put in writing any of the details of those disputes until we have further clarity on the purported (NDA),” Hodas told the judge then.
But his reluctance doomed him in the end. Saba questioned why Herman at least didn’t try to file supporting details under seal.
In the same May 9 hearing, Herman’s attorney mainly focused instead on the validity of the NDA, claiming Herman didn’t recall signing it. After months of court filings, he did not raise this specific issue until May 5. It also was not specifically mentioned in Herman’s lawsuit against Woods.
The judge noticed this and noted Herman never actually denied signing the NDA.
“If the record at the time of Hearing contained unequivocal assertions from Herman or on her behalf that the NDA did not exist and/or did not contain her signature and/or that she did NOT sign the NDA, substantial issues of fact would exist requiring an evidentiary hearing,” the judge ruled.
It’s possible Herman could appeal the judge’s ruling at some point. But the judge noted that the validity of the NDA itself also is a matter to be decided in arbitration.
“As noted earlier within this Order, Herman’s counsel has conceded this point,” the judge wrote.
Follow reporter Brent Schrotenboer @Schrotenboer. E-mail: bschrotenb@usatoday.com.
