Case 3:19-cv-00822-L Document 1 Filed 04/02/19 Page 1 of 12 PageID 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

JOE MACHOL, INDIVIDUALLY §

§
§
v. §
§
SOUTHWEST OFFICIALS § CASE NO. _________________
ASSOCIATION, INC. D/B/A §
TEXAS ASSOCIATION OF §
SPORTS OFFICIALS, TEXAS §
ASSOCIATION OF SPORTS OFFICIALS §
HOUSTON CHAPTER FOOTBALL §
DIVISION, MICHAEL FITCH, BILL §
THEODORE, TOMMY MOORE, AND §
MIKE ATKINSON §

COMPLAINT AND JURY DEMAND

COMES NOW, Plaintiff JOE MACHOL complaining of Defendant

SOUTHWEST OFFICIALS ASSOCIATION, INC. D/B/A TEXAS ASSOCIATION OF

SPORTS OFFICIALS, TEXAS ASSOCIATION OF SPORTS OFFICIALS HOUSTON

CHAPTER FOOTBALL DIVISION, MICHAEL FITCH, TOMMY MOORE, BILL

THEODORE AND MIKE ATKINSON (collectively “Defendants”) and would show the

following:

PARTIES AND SERVICE

1. Joe Machol (“Plaintiff” or “Machol”) is an individual citizen of the state of

Texas.

2. Southwest Officials Association, Inc. D/B/A Texas Association of Sports

Officials (“Defendant” or “TASO”) is a nonprofit organization with a principal place of

business in Richardson, Dallas County, Texas. This defendant may be served with

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service of process by serving its registered agent, Michael Fitch at 1221 West Campbell

Road, Suite 141, Richardson, Texas 75080, or wherever he may be found.

3. Texas Association of Sports Officials Houston Chapter Football Division

(“Defendant” or “Chapter”) is a separately incorporated nonprofit entity apart from

Southwest Officials Association, Inc. This Defendant may be served with service of

process by serving its registered agent, Michael Fitch at 1221 West Campbell Road, Suite

141, Richardson, Texas 75080, or wherever he may be found.

4. Michael Fitch (“Defendant” or “Fitch”) is the Executive Director of TASO and

an individual residing in Dallas County, Texas at 4102 Buena Vista St. #14, Dallas,

Texas 75204. This defendant may be served at his regular place of business at 1221 West

Campbell Road, Suite 141, Richardson, Texas 75080, or wherever he may be found.

5. Tommy Moore (“Defendant” or “Moore”) is an individual, who at all relevant

times was the Executive Secretary of the TASO Houston Chapter Football Division. This

individual may be served with service of process by serving him at 109 Ridgewood Rd.,

Conroe, Texas 77304 or wherever he may be found.

6. Bill Theodore (“Defendant” or “Theodore”) is the Assistant Executive Director

of TASO and an individual residing in Dallas County, Texas. This defendant may be

served at his regular place of business at 1221 West Campbell Road, Suite 141,

Richardson, Texas 75080, or wherever he may be found.

7. Mike Atkinson (“Defendant” or “Atkinson”) is an individual, who at all relevant

times was the President, Past President and Chairman of the Board of the TASO Houston

Chapter Football Division. This individual may be served with service of process by

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serving him at 3217 Spring Cypress Rd., Spring, Texas 77388 or wherever he may be

found.

JURISDICTION AND VENUE

8. This action arises under Title VIII of the Sarbanes-Oxley Act, Section 806, 18

U.S.C. §1514A as amended by the Dodd-Frank Act, Pub. L. No. 111-203, §922 (July 21,

2010).

9. Jurisdiction is conferred on this Court by 28 U.S.C. §1331, because the action

arises under the laws of the United States.

10. Venue is proper in the Northern District of Texas, Dallas Division, because

Defendant TASO conducts business in Dallas County, Texas, and because the claims

arose in Dallas County, Texas.

FACTUAL ALLEGATIONS

Plaintiff is Elected President of the TASO Houston Chapter Football Division

11. Plaintiff Joe Machol is a professional football referee who has been a

member of TASO refereeing middle school and highs school football games for more

than 38 years. He has been a Game Day Assistant and time clock operator for the

National Football League (“NFL”) since 2002. Machol was selected as the Game Day

Assistant Captain every year he worked for the NFL. He was the Liason for the Clock

Crew at the 2018 Texans NFL playoff game in January. He worked the game clock in

two Super Bowls, nos. XXXVIII and LI. He worked as the Game Clock Operator in two

NFC championship games, two NFC divisional games, and five NFC wild card games.

He also worked the game clock at the 2016 NFL game in Mexico City. Additionally,

Machol received two Super Bowl rings for his work as a Game Clock Operator.

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12. In his 38 years as a football official with TASO and 15 years as a Game

Clock Operator with the NFL, Machol never received a complaint about his performance.

All of that changed in early January 2018, when Machol was elected President of the

Houston Chapter Football Division (“Chapter”).

13. Upon Machol’s election to the position of 2017 Chapter President, he

promised to exercise his fiduciary duty and oversight of the Chapter’s finances. He was

concerned about financial transactions, including payment of invoices without proper

documentation and the personal use of Chapter debit bank cards by the treasurer. Machol

reasonably believed the Chapter’s officers were engaged in fraud, including mail fraud

and/or wire fraud, by failing to properly record the non-profit’s financial transactions and

submitting false Form 990s to the IRS. 1

Officers and Board Members

14. Michael Fitch is the Executive Director of TASO. He supervises and

controls all of the business and affairs of TASO, as well as the individual Chapters,

including the Houston Chapter.

15. In addition to the state TASO organization oversight duties, Fitch directly

controls the acceptance of any ethics charges or complaints filed by Chapter members

against other Chapter members, even though each Chapter has its own locally appointed

Ethics committee. The TASO board members, Fitch, Theodore, Moore and Atkinson use

the ethics charges’ grievance process to target certain members who challenge the

organization’s arbitrary enforcement policies. TASO Executive Committee members

have complete control over the punishments dealt to individual Chapter members and

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have been known to threaten Chapter members with career ending negative phone calls to

college conference executives and the National Football League (“NFL”). Fitch,

Theodore, Moore and Atkinson use their authority to coerce Chapter members to stay

silent about concerns or risk removal from the field.

Chapter Finances Raises Concerns

16. During the 2016 and 2017 terms, Mike Atkinson was the President and

Tommy Moore was the Chapter Executive Secretary. The Chapter officers and Board

members owed the Chapter the highest duty of care and loyalty.

17. The officers’ fiduciary duties included oversight and authorization for

disbursement of all Chapter funds according to the Chapter Constitution and By-Laws.

18. Machol was elected President of the Chapter in November 2017 with his

term to commence January 2018. Shortly after his election, Machol questioned the

Chapter treasurer’s failure to properly document financial transactions and questioned the

Board’s approval for such expenditures, and failure to require the Chapter treasurer to

reconcile the Chapter bank accounts. Machol learned that treasurer used the Chapter’s

bank debit card to make cash withdrawals over a period of approximately 6 months for

non-chapter related use. Further, Machol learned that the treasurer had written checks

from the Chapter’s bank account to his employer and cashed the checks beginning as

early as March 2017. None of the Board members questioned the financial transactions

that were occurring under their watch.

19. Machol also investigated and reported other financial irregularities

involving former officers and Chapter Board members related to the accounting for

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The Finance Committee Final Report issued on September 9, 2018 confirmed the 2017 profit and loss
statement was overstated by $13,796.15. Further, the report confirmed no 1099s were issued to Tommy

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advertising sales that occurred as far back as 2008 and/or 2009. Machol learned that the

Executive Secretary, Tommy Moore, (who has been in that position since 2006)

unilaterally settled a claim with the 2017 sitting Vice President for approximately $4,600.

The Vice President at the time, collected money from advertisers who placed ads in the

Chapter’s Roster book and failed to account for all of the money collected on behalf of

the Chapter. After settling the claim, the Chapter Board failed to disclose the settlement

to the Chapter members or report it in the financial documents, including the required

Form 990.

20. Machol questioned the Board about the Chapter’s payment of invoices to a

company called TBC Multifaceted Hospitality, a company that did not exist as a legal

entity, but was used by the Vice President to perform services and collect funds, who

failed to disclose his relationship or disclose the conflict. The Chapter member who

operated TBC Multifaceted Hospitality did not provide a tax identification number on the

invoices to the Chapter, did not register the business with the Texas State Comptroller’s

office or the Texas Secretary of State, and did not file an assumed name certificate with

the Harris County Clerk’s office. In addition, the treasurer did not issue IRS form 1099s

to TBS Multifaceted Hospitality, or any other member of the Chapter who received

money from the Chapter, including Defendant Moore. The Chapter treasurer was

required to, and should have, obtained all back up documentation to prove-up the

invoices before submitting them to the Board for approval and payment, pursuant to the

Chapter By-Laws. The treasurer was required to maintain auditable records and prepare

monthly reports.

Moore or others, the 2016 Form 990 did not agree with the year in financial statements.

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21. Due to these and other financial transactions that were not properly

documented, Machol believed the Chapter’s 2017 Financial Statement set to be approved

by the Chapter Board by March 31, 2018 was incorrect, misleading and, possibly

fraudulent.

22. Exercising his oversight and fiduciary responsibilities as Chapter President

and because of his concerns over possible fraud related to the Chapter’s finances

involving 2017 officers, Machol asked the Board members to approve a financial audit.

The request was met with resistance and was denied by the Board. In late March 2018,

however, and after repeated requests, the Board acquiesced to the formation of a finance

committee.

23. Machol was engaging in protected activity under the Sarbanes-Oxley Act

when he reported financial issues and irregularities to the Chapter Board members and to

TASO.

2017 Chapter Financial Review

24. Machol refused to cooperate with the 2018 Chapter Board members and

summarily approve the 2017 Financial Statement without an audit or any investigation

into the fraud he believed existed. Machol reasonably believed the 2017 Financial

Statement submitted to the Board was inaccurate.

25. Despite their fiduciary duties to the Chapter, Tommy Moore, (Executive

Secretary) and other Board members refused to allow a finance committee to review the

financial records or initiate a Board audit before submitting the 2017 Financial Statement

to the entire Board for approval. Instead of exercising their oversight, they conspired to

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rush approval of the 2017 Financial Statement over Machol’s objections and conspired to

remove Machol as President in retaliation.

26. It is clear from the information contained in the September 9, 2018

Finance Committee Report, that the issues raised by Machol were justified, reasonable

and serious. The Report exposed ongoing financial abuses and fraud by Chapter officers

and lack of compliance with the most basic IRS requirements of a nonprofit corporation.

Retaliation by TASO and the Chapter

27. Machol expressed his concerns with the Chapter’s past financial

transactions and likely fraud with each of the Chapter Board members and with the

Executive members, Fitch, Atkinson, Theodore, and Moore. Instead of engaging in an

internal financial investigation and exercising their fiduciary duties to investigate the

fraud, they retaliated against Machol by removing him from his position of President of

the Chapter, removing him from all TASO on-the-field officiating duties, placing him on

probation for 5 years, and prohibiting him from holding any Chapter office for 10 years.

Machol’s appeal of this decision was denied on October 4, 2018.

28. Fitch and Theodore summarily terminated Machol’s work as an official

violating his rights to engage in protected activity under the Sarbanes-Oxley Act.

Retaliation by the National Football League.

29. Machol began working for the National Football League (”NFL”) as a

Game Clock Operator in 2002. Machol was selected as the Game Day Assistant Captain

for each of the 15 years he worked for the NFL. He was recently selected as the liaison

for the Clock Crew at the 2018 Texans NFL playoff game in January. As a Game Clock

Operator, Machol worked in two Super Bowls, XXXVIII and LI. He worked two NFC

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championship games and two NFC divisional games, and five NFC wild card games. He

also worked the 2016 NFL game in Mexico City. Machol received two Super Bowl rings

from the NFL for his work as a Game Clock Operator.

30. Machol worked 175 games for the NFL and was told he did a great job

after every Houston game by his supervisor, Gary Slaughter.

31. Despite his exemplary record, after Machol raised his concerns with

TASO the NFL sided with TASO’s caporegime and summarily terminated Machol in

retaliation for blowing the whistle on the Houston Chapter.

Racism at the highest levels.

32. In addition to the fraud and other financial irregularities reported by

Machol to the Chapter, executive officers, and TASO, in February 2019, Machol reported

additional issues of racism by certain members of the Chapter. Specifically, Machol

reported racist statements made by Atkinson against African American Chapter members.

33. On February 18, 2019, Machol reported 2 to TASO board members and all

executive members, Fitch and Theodore, that Atkinson used the “N”-word on numerous

occasions when discussing African American members of the Houston Chapter. Machol

reported Atkinson denigrating other Chapter members, because of their race, days after a

January 2019 gathering of Chapter members. Atkinson was discussing attendance at that

Chapter mixer in which he stated:

“I went to the mixer the other day, bunch of f**king n***ers wanting a free

meal.”

Plaintiff provided additional evidence of racist remarks by Atkinson, summarizing

his [Atkinson] position that after being in the Houston Chapter for 47 years and he has

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had only one African American member on his crew. According to Atkinson, he has

only had one black crew member is because that member “was very coachable” and using

the N-word to describe African Americans in general.

Despite having this information, The Executive Committee, including Fitch,

Theodore and Moore, 3 have not removed Atkinson from his officiating duties on the field

for the 2019 high school football season.

34. TASO and members of the Chapter Board convened a conference call on

the evening of February 19, 2019 and confirmed their initial decision to keep Machol

from officiating in 2018, keep his 5 year probation in place, and keep his 10 year

prohibition against running for office in place. Those participating in the conference call

discussing Machol’s punishment for reporting the Chapter financial fraud and racist

allegations included Fitch, Theodore, Moore, and several Chapter members.

35. Apparently, Fitch and Theodore (Executive Board Members) intended to

intimidate the other Chapter members who might also hire an attorney to protect their

rights, so Fitch, Theodore and Moore engaged in further retaliation against Machol. The

additional retaliation came in the form of termination of his work for the NFL. Tommy

Moore contacted his friend, Walt Anderson, a full time NFL referee and engaged the

“Good Ole Boy” network to get Machol removed as a game Clock Operator.

36. It worked, because on March 6, 2019, despite his outstanding

performance, Frank Szczepanik with the NFL terminated Machol’s services as a Game

Clock Operator. The NFL’s retaliation violated Machol’s right to engage in protected

activity under the Sarbanes-Oxley Act.

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These statements are excerpted from an audio recording.

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CAUSES OF ACTION

Retaliation in Violation of the Sarbanes Oxley Act.

37. Machol incorporates paragraphs 11-36 as if fully set forth herein.

38. Defendant TASO and the Houston Chapter are not for profit companies

subject to Section 806 of the Sarbanes-Oxley Act. Under the provisions of the Act,

Machol engaged in protected activity or conduct by reporting violations of 18 U.S.C.

§1341 (mail fraud) and §1343 (wire fraud); Defendants knew of his protected activity;

and Machol suffered retaliation, demotion, loss of income, and injury to his reputation as

a result. Further, Machol’s protected activity was the contributing factor in the actions

taken by Defendants.

39. As a result of Defendants actions Machol has been damaged.

JURY DEMAND

40. Plaintiff hereby demands a jury trial on all issues that can be submitted to

a jury.

PRAYER

41. Plaintiff prays that Defendants be cited to appear and answer herein and

Plaintiff be granted judgment against Defendants, jointly and severally for damages as

follows:

(a) Actual damages;

(b) Reinstatement as a Game Clock Operator with the NFL;

(c) Special damages for impairment of reputation, personal humiliation, mental

anguish, and other noneconomic harm resulting form retaliation

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Defendants Fitch, Theodore and Moore are all a part of the white “Good Ole Boy” network protecting
their own.

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(d) Plaintiffs all costs and reasonable and necessary attorney’s fees, as the Court
deems equitable and just;

(e) Pre-judgment and post judgment interest at the maximum amount allowed by
law; and

(f) the Court grant to Plaintiff such other and further relief, general or special,
either at law or in equity, to which Plaintiff may show himself to be justly
entitled.

April 2, 2019

Respectfully submitted,

JONES, GILLASPIA & LOYD LLP

By: /s/ Bruse Loyd

Bruse Loyd
Texas Bar No. 24009032
Member NDTX
4400 Post Oak Parkway, Suite 2360
Houston, Texas 77027
Telephone: 713.240.5646
Facsimile: 713.225.6126
bruse@jgl-law.com

ATTORNEY-IN-CHARGE

OF COUNSEL:

O’CONNORWECHSLER PLLC

Kathleen A. O’Connor
State Bar No. 00793468
Jeri P. Wechsler
State Bar No. 00794831
4400 Post Oak Parkway, Suite 2360
Houston, Texas 7027
T: (713) 225-9000 ext. 234
F: (713)225-6126
kaoconnor@o-w-law.com
jpwechsler@o-w-law.com

ATTORNEYS FOR JOE MACHOL

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