THE WILLFUL BLINDNESS OF THE USTA.

By Javier Palenque

Everyone reading this article can remember the TV Series "Hogan's Heroes" (1965-1971) and the adorable Sargeant Schultz who coined the phrase " I see nothing, and I know nothing". In academia, the act of knowing nothing and seeing nothing is called and studied under "Willful Blindness". Examples in the corporate world abound when executives and boards "turn the other way" or pretend "not to see" the obvious problems of not accepting facts and data. Willful blindness is a legal term that means there is information you could and should know but have elected not to know. Deliberate indifference and contrived ignorance are also used to describe the phenomenon. Unfortunately, there is a great deal of willful blindness in the world today, especially at the inept USTA. Willful blindness will cause sooner or later the downfall of an organization’s leadership and culture. Here are some examples of willful blindness:?

• Banks approve mortgages for people they know cannot afford them long-term.
• USA Gymnastics cover-up of sexual abuse.
• Hospitals schedule medical interns to work 24-hour shifts when they know the safety problems caused by a lack of sleep.
• The Catholic Church ignored the child abuse that occurred under its proverbial roof for decades.
• The Enron and Arthur Andersen scandals.
• The Volkswagen engine failures.
• The USTA’s avoidance (for decades) of metrics to measure the growth of the game and participation in the USA.

Each of those examples occurred because at least one person or board turned a blind eye to facts. In many instances, the consequences are catastrophic when many people in leadership turn a blind eye, especially in the workplace where people and careers can get hurt.

In legal terms, willful blindness is an aggressive liability theory, most often applied in criminal proceedings, that seeks to expand the definition of “knowledge” to include circumstances in which organizations or (especially) individuals “turn a blind eye” when there’s a strong likelihood that a particularly troubling fact or circumstance exists. It’s typically applied to undermine an “I know nothing” defense.

Assessing willful blindness involves a highly subjective analysis grounded in the concept of deliberate ignorance. Rather, establishing willful blindness usually requires a determination that the board intentionally “closed their eyes” to what otherwise would have been apparent to them; that there was a deliberate attempt to avoid learning all of the relevant facts. It’s purposely not engaging with the factual record; it’s projecting indifference to warning pleas. Imagine an ostrich, that is your USTA leadership, pretending to not hear the facts. Now think that they are appointed to protect the game and that is precisely what they do not do.

Simply put, contrivance is often a key element of willful blindness. Indeed, the willful blindness theory of liability has increasingly been applied beyond criminal proceedings to civil matters, including laws related to patent infringement, bankruptcy, financial fraud, and “failure to supervise.” There’s also a concern that the theory may be applied to alleged failures of corporate governance (such as when a fiduciary “consciously disregards” key participation data and resource allocation facts in tennis). Allegations supporting a traditional willful blindness claim can sound remarkably like those alleging a more traditional duty-of-care breach. This may prove tempting for those who seek an “end run” around exculpatory charter or bylaw provisions.

That’s why organizational leaders—especially those in executive and board positions—should be careful by their actions and inactions not to fall into a willful blindness “trap.” That trap is best avoided by making sure that potential “red flags” and other key facts get in front—and stay in front—of those leaders, until they are resolved. The USTA, rather than face critics, avoids them and continues its policy of ignoring the noise while changing nothing in its culture that all it does is promote its welfare at the expense of the mission.

But allegations that a CEO, a board, or individual directors, knowingly took affirmative steps to keep “red flags” at a safe distance may be more persuasively described as bad faith when painted with a willful blindness hue. Please remember the sexual harassment claims against the USTA and how the leadership chose to defend the organization at the expense of a child. See the investigative report here.

So the current public focus on willful blindness offers a cautionary tale about informed decision making and oversight. It’s one thing to act negligently concerning information flow; it’s entirely something else to engage in some kind of contrivance to avoid being presented with critical information. It won’t be enough for a leader or board to claim ignorance if that leader/board has failed to take the steps that would have positioned him or the board to be informed. I have been trying to hold the USTA board accountable for the last six years, they all pretend not to listen.

Willful blindness can also entrap organizational leaders such as executives and board members. The legal system doesn’t serve to protect the actions of those consciously engaged in a course of deliberate ignorance, no matter their title or job description, much less if the organization is a false not-for-profit that lies to the country, its sponsors, and the public.

There is no such thing as the “Sergeant Schultz Defense”. And “I know nothing” is not a governance best practice in any business, yet the USTA board adopts both, shameful to say the least.

The solutions.

USTA’s culture has to create transparency and welcome critics. Leaders must support that culture by holding employees accountable in a firm and fair way. The mission has to be priority number one, but it is not even a priority if you look at the financials.

Cultures and leaders must reward employees for speaking, frankly, and professionally. Leaders must pay special attention to the employees they bring into the USTA. Are they supportive of your culture? Will they continue to improve your culture? Will they strengthen or hinder your culture? What if the culture already in place is rotten? What happens then? that is called the nefarious Ol' boys status quo.

Here are in my experience some key steps to remove willful blindness from the inept USTA:

• Focus on creating self-awareness through feedback tools and programs.
• Use data to make decisions and make them transparent.
• Create an environment where people are encouraged to play devil’s advocate. Challenge the thinking of the "culture".
• Listen to discerning voices and critics.
• Use benchmarks to determine whether employees can tell the truth or whether they are suffering from cultural neglect and help identify problem areas in your workplace. The problem will be easily identified, it's the leadership.

As you can see, these are the things that the USTA leadership will never do as it is in their culture to lie, hide, manipulate, defend itself, and block critics. All in a concerted effort to avoid responsibility, and accountability while avoiding being exposed for their incompetence and ineptitude in growing the game. Decades of the wrong leadership is the problem and to think that they are being funded like no other organization in sports. Simply mediocre.

I say NO to ineptitude and YES to growing the game.

I can be reached at [email protected]

P.S. Now do you understand why I want them out?